Ramirez v. City of Gardena

Filed 8/23/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
IRMA RAMIREZ, Individually and as B279873
Representative, etc.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BC609508)
v.
CITY OF GARDENA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Yvette M. Palazuelos, Judge. Affirmed.
Innabi Law Group, Abdalla J. Innabi and Amer Innabi for
Plaintiffs and Appellants.
Manning & Kass, Ellrod, Ramirez, Trester, Mildred K.
O’Linn, Tony M. Sain and Ladell H. Muhlestein for Defendant
and Respondent.
_________________________________________
Mark Gamar was a passenger in a pickup truck that was
the subject of a pursuit by police officers employed by the City of
Gardena (the City) on February 15, 2015. Gamar died from
injuries he sustained when the truck spun into a street light pole
after one of the officers bumped the left rear of the truck with the
right front of his vehicle to stop the truck using a maneuver
called a “Pursuit Intervention Technique” (PIT). Plaintiff and
appellant Irma Ramirez, Gamar’s mother, filed a wrongful death
suit against the City, claiming that the officer acted negligently
and committed battery in conducting the PIT maneuver.
The trial court granted summary judgment in favor of the
City, finding that the City was immune from liability for the
officer’s conduct under Vehicle Code section 17004.7.1 That
statute provides immunity to a “public agency employing peace
officers” when the agency adopts and promulgates a policy on
vehicular pursuits in compliance with the requirements of the
statute. Ramirez argues that (1) the City’s vehicular pursuit
policy did not comply with section 17004.7 because it did not
adequately specify the criteria for employing pursuit intervention
tactics, and (2) the City did not adequately promulgate its policy.
We reject both arguments and affirm.
BACKGROUND
1. The Vehicle Pursuit
We only briefly summarize the circumstances surrounding
the incident that led to Gamar’s death, as they are not relevant to
the issues on this appeal.
1Subsequent undesignated statutory references are to the
Vehicle Code.
2
Shortly after 11:00 p.m. on the night of February 15, 2015,
several officers employed by the City heard reports of an armed
robbery that had occurred about 10 minutes previously. The
suspects had reportedly fled in a blue 1980’s Toyota pickup truck.
Officer Michael Nguyen subsequently saw a 1980’s Toyota
pickup truck and observed that the two occupants matched the
descriptions of the robbery suspects. Nguyen attempted to stop
the vehicle by activating his emergency lights and siren, but the
vehicle fled, failing to stop at traffic signals and veering into
oncoming traffic. Nguyen pursued, followed by several other
patrol vehicles.
The truck made several turns before approaching the
Harbor Freeway. At times the truck was traveling about 60
miles per hour in a 35 mile per hour residential zone.
The pursuing officers testified that they believed the truck
was about to enter the freeway going in the wrong direction.
Nguyen performed a PIT maneuver by ramming his patrol
vehicle into the left rear portion of the pickup truck’s bed. The
truck lost control, spun, and collided into a light pole. The driver
climbed out of the driver’s door and was detained. The officers
saw that the passenger (Gamar) had a shotgun next to him. The
officers removed the shotgun and pulled Gamar from the truck.
They laid him on the sidewalk, where he received medical
assistance.
The pursuit lasted between one and two minutes before the
crash occurred.
3
2. The City’s Pursuit Policy
At the time of the incident, the City had a written policy on
vehicle pursuits that was contained in a portion of the police
manual.2 The policy contained sections on initiating and
discontinuing a vehicle pursuit (discussed in more detail below).
The policy also contained a section addressing vehicular
pursuit driving tactics. That section stated that the PIT
maneuver “can be used to stop a pursuit, as soon as possible, with
Watch Commander approval, if practical.” Another portion of
that section instructed officers that “[a]ll forcible stop tactics
(e.g., roadblocks, ramming, boxing-in, or channelization) shall
only be used as a last resort in order to stop a fleeing violator in
keeping with Departmental guidelines regarding use of force and
pursuit policy.”
The City provided training to its police officers on its
pursuit policy on at least an annual basis. As part of that
training, officers were required to certify electronically that they
had received, read, and understood the pursuit policy.
A training log produced by the City confirmed that 81 of the
City’s 92 officers (including Officer Nguyen) had completed the
annual training on the City’s pursuit policy within a year of the
incident. The City also produced written certifications completed
by 64 officers in 2009 and 2010 attesting that they had received,
read, and understood the City’s pursuit policy.3 According to
2The City apparently adopted a new pursuit policy several
weeks after the incident occurred, which Ramirez acknowledges
was coincidental.
3The certifications were in a form recommended by the
Commission on Peace Officer Standards and Training (POST),
which also prepared vehicle pursuit guidelines on which the
4
testimony submitted by the City’s custodian of records,
Lieutenant Mike Saffell (discussed further below), all City
officers employed at the time of the incident completed such
forms, but some forms might have been lost during the police
department’s move to a new station.
3. The City’s Summary Judgment Motion
The City moved for summary judgment on the grounds that
(1) the officers’ conduct in conducting the pursuit was reasonable
as a matter of law, and the City therefore could not be
derivatively liable, and (2) the City was immune under section
17004.7. The trial court granted the motion.
With respect to the first ground for the City’s motion, the
trial court found disputed issues of fact concerning the
reasonableness of Officer Nguyen’s actions in conducting the PIT
maneuver. Among other things, the court concluded that there
were disputes concerning (1) whether a reasonable police officer
would have believed that lives were in danger before deciding to
initiate the PIT maneuver, (2) whether a reasonable officer would
have concluded that the truck was about to enter the freeway
going the wrong way, and (3) whether the truck applied its
brakes or slowed down.
However, with respect to the second ground of the motion,
the trial court found that the City was immune under section
17004.7. The court concluded that the “City properly
promulgated its pursuit policy in compliance with Vehicle Code
§ 17004.7(b) and provided regular and periodic training.” Based
on the Saffell declaration, the court found that “[a]ll active duty
requirements of section 17004.7, subdivision (c) are modeled.
(§ 17004.7, subd. (e).)
5
police officers received the training on an annual basis or more
frequently and were required to certify that he or she read,
received, and understood the pursuit policy and training.”
The trial court also found that the City’s pursuit policy met
the requirements of section 17004.7. The court concluded that, in
compliance with section 17004.7, subdivision (c), the City’s policy
provided “objective standards by which to evaluate the pursuit
and whether it should be initiated and what tactics to employ.”
DISCUSSION
1. Standard of Review
We apply a de novo standard of review to the trial court’s
summary judgment ruling. We interpret the evidence in the light
most favorable to Ramirez as the nonmoving party and resolve all
doubts about the propriety of granting the motion in her favor.
(Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 206
(Lonicki).) We consider all the evidence before the trial court
except that to which objections were made and properly
sustained. (Pipitone v. Williams (2016) 244 Cal.App.4th 1437,
1451–1452.) Although we independently review the City’s
motion, Ramirez has the responsibility as the appellant to
demonstrate that the trial court’s ruling was erroneous. (Nealy v.
City of Santa Monica (2015) 234 Cal.App.4th 359, 372.)
In exercising our independent review, we apply the
standards applicable to summary judgment motions. A
defendant may obtain summary judgment by establishing a
complete defense to the plaintiff’s claim. (Code Civ. Proc., § 437c,
subd. (p)(2).) Governmental immunity under Vehicle Code
section 17004.7 is an affirmative defense. (City of Emeryville v.
Superior Court (1991) 2 Cal.App.4th 21, 23.) The defendant has
the initial burden to show that such a defense applies. (Code Civ.
6
Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 850–851.) Once the moving party does so, the
burden of production shifts to the opposing party to show the
existence of disputed material facts. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar, at pp. 850–851.) The parties must meet
their respective burdens by providing admissible evidence. (Code
Civ. Proc., § 437c, subd. (d); Jambazian v. Borden (1994) 25
Cal.App.4th 836, 846.)
Section 17004.7, subdivision (f) provides that “[a]
determination of whether a public agency has complied with
subdivisions (c) and (d) is a question of law for the court.” We
independently review such questions of law. (Colvin v. City of
Gardena (1992) 11 Cal.App.4th 1270, 1281 (Colvin).)4
2. The City’s Pursuit Policy Met the Requirements
of Section 17004.7
Vehicle Code section 17004.7 is part of a broader statutory
scheme determining when public entities may be liable under
California law. Under Government Code section 815, subdivision
4 Vehicle Code section 17004.7, subdivision (c) describes the
minimum standards for pursuit policies, and subdivision (d)
defines training requirements. The statute’s promulgation
requirements are identified in a different subdivision, (b)(2).
Thus, the plain language of section 17004.7 does not rule out the
possibility that the adequacy of a public agency’s promulgation
efforts might depend upon factual findings. However, because
this is an appeal from a summary judgment ruling, we need not
consider the appropriate procedure for deciding any such factual
issues under section 17004.7. The trial court’s order granting
summary judgment presents an issue of law. As with other
issues of law, we review it independently. (Code Civ. Proc.,
§ 437c, subd. (c); Lonicki, supra, 43 Cal.4th at p. 206.)
7
(a), “[e]xcept as otherwise provided by statute: [¶] (a) [a] public
entity is not liable for an injury, whether such injury arises out of
an act or omission of the public entity or a public employee or any
other person.” This reflects the principle that, in California,
“sovereign immunity is the rule” and “governmental liability is
limited to exceptions specifically set forth by statute.” (Cochran
v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409.)
Section 17001 creates such an exception. It provides that
“[a] public entity is liable for death or injury to person or property
proximately caused by a negligent or wrongful act or omission in
the operation of any motor vehicle by an employee of the public
entity acting within the scope of his employment.”
Section 17004.7 in turn limits the liability that section
17001 otherwise permits by affording immunity to public
agencies that adopt and implement appropriate vehicle pursuit
policies. Section 17004.7, subdivision (b)(1) provides that “[a]
public agency employing peace officers that adopts and
promulgates a written policy on, and provides regular and
periodic training on an annual basis for, vehicular pursuits
complying with subdivisions (c) and (d) is immune from liability
for civil damages for personal injury to or death of any person or
damage to property resulting from the collision of a vehicle being
operated by an actual or suspected violator of the law who is
being, has been, or believes he or she is being or has been,
pursued in a motor vehicle by a peace officer employed by the
public entity.” Subdivision (c) sets forth 12 specific issues that a
pursuit policy must address, and subdivision (d) addresses
training requirements. (§ 17004.7, subds. (c) & (d).)
Subdivision (b)(2) identifies the requirements for
promulgating a public agency’s pursuit policy. The subdivision
8
states that promulgation “shall include, but is not limited to, a
requirement that all peace officers of the public agency certify in
writing that they have received, read, and understand the policy.
The failure of an individual officer to sign a certification shall not
be used to impose liability on an individual officer or a public
entity.” (§ 17004.7, subd. (b)(2).)
Citing Morgan v. Beaumont Police Dept. (2016) 246
Cal.App.4th 144 (Morgan), Ramirez argues that, under section
17004.7, subdivision (b)(2), the City could only meet its burden to
show adequate promulgation of its pursuit policy by proving that
each of its officers signed a certification attesting that he or she
had received, read, and understood the policy. Ramirez claims
that the City did not meet this requirement because it provided
insufficient evidence of a written certification by each City police
officer. Ramirez also claims that the City’s pursuit policy failed
to specify adequate criteria under subdivision (c) with respect to
two issues: “driving tactics” and “authorized pursuit intervention
tactics.” (§ 17004.7, subd. (c)(5)–(6).)5 We address each
argument below.
a. Evidence of promulgation
The City claims that it provided evidence of 100 percent
compliance with the written certification requirement through
the Saffell declaration. Saffell testified that, “[u]pon review of my
Department’s records, I am informed and believe that all of the
officers who were employed at the time of the incident” completed
5 On appeal, the City does not challenge the trial court’s
finding that disputed issues of fact exist with respect to whether
the actions of Officer Nguyen in initiating and executing the PIT
maneuver were reasonable. We therefore need consider only the
issue of immunity under section 17004.7.
9
written certifications stating that they had received, reviewed
and understood the City’s “pursuit/safety policies.” Ramirez
disputes whether this declaration is sufficient to establish that
each of the City’s officers executed a written certification.
We need not reach that dispute. Given the importance of
the statutory interpretation question that the parties have
briefed, we consider that issue first. Our disposition of that issue
makes it unnecessary to consider the adequacy of the Saffell
declaration. As discussed below, we conclude that section
17004.7, subdivision (b)(2) does not require proof of compliance by
every officer with the written certification requirement as a
prerequisite to immunity. Thus, other evidence that the City
submitted—in the form of the POST certifications and the
electronic training log—is sufficient to support summary
judgment under section 17004.7, subdivision (b)(2), even though
that evidence does not establish 100 percent compliance with the
written certification requirement.6
6 We reject Ramirez’s argument that the training log was
inadmissible hearsay. Although she objected to the log, Ramirez
also introduced the log in support of her own opposition to the
City’s summary judgment motion before the trial court had ruled
on her objection. In doing so, she waived any objection to its
admissibility. (People v. Williams (1988) 44 Cal.3d 883, 912 [“It
is axiomatic that a party who himself offers inadmissible
evidence is estopped to assert error in regard thereto”].) We also
reject Ramirez’s broader argument that a public entity claiming
immunity under section 17004.7 can prove the fact of written
certifications only by introducing the certifications themselves.
Section 17004.7 contains no such specific evidentiary rule.
Section 17004.7, subdivision (b)(2) includes a “requirement that
all peace officers of the public agency certify in writing” their
receipt and understanding of the public agency’s pursuit policy,
10
b. The City adequately promulgated its
pursuit policy under section 17004.7,
subdivision (b)(2)
Section 17004.7, subdivision (b)(2) states that a public
agency’s promulgation of a pursuit policy “shall include, but is
not limited to, a requirement that all peace officers of the public
agency certify in writing that they have received, read, and
understood the policy.” (Italics added.) Relying on Morgan,
supra, 246 Cal.App.4th 144, Ramirez argues that the City is not
entitled to immunity because it failed to provide evidence that all
of its officers executed written certifications in compliance with
section 17004.7, subdivision (b)(2). We respectfully disagree with
the interpretation of the statutory promulgation requirement
that the court adopted in Morgan.
In Morgan, the Fourth District Court of Appeal considered
a promulgation procedure in which the Beaumont Police
Department (the Department) provided notifications of policy
updates to officers by e-mail. The e-mails directed the officers to
access the policy at one of several electronic locations and the
officers were then required to acknowledge receipt of the policy by
a reply e-mail. (Morgan, supra, 246 Cal.App.4th at p. 161.) The
court found that this procedure failed to satisfy section 17004.7
for two independent reasons. First, the officers’ e-mails only
acknowledged receipt of the policy and did not acknowledge that
they had “received, read, and under[stood]” the policy as
subdivision (b) of section 17004.7 requires. Second, and as is
but it does not contain any limitation on how such certification
may be proved. We therefore apply the evidentiary rules that
ordinarily control proof of facts in summary judgment
proceedings.
11
germane here, the Department’s e-mail records did not show that
each officer even acknowledged receipt. The officers’
acknowledgment e-mails were not retained, and the declaration
that the Department offered in support of its motion stated only
that the “ ‘vast majority’ ” of officers comply with the e-mail
acknowledgement process. (Id. at p. 162.)
The court in Morgan concluded that section 17004.7,
subdivision (b)(2) is unambiguous in requiring proof that each
officer provided a written certification as a condition of immunity.
(Morgan, supra, 246 Cal.App.4th at p. 154.) The court also found
support for this interpretation in the legislative history of the
section.
The Legislature amended section 17004.7 in 2005 (Stats.
2005, ch. 485, § 11) after another decision by the Fourth District
Court of Appeal, Nguyen v. City of Westminster (2002) 103
Cal.App.4th 1161 (Nguyen). Because the City of Westminster
had adopted a pursuit policy, the court in Nguyen found that it
was immune from liability for an accident in a school parking lot
following a police pursuit. The city’s policy was “ ‘poorly
organized,’ ” raising questions about whether it was actually
implemented. (Morgan, supra, 246 Cal.App.4th at p. 155,
quoting Nguyen, at p. 1166.) However, the version of section
17004.7 in effect at the time Nguyen was decided required only
that a public agency adopt a compliant policy, and did not require
the agency actually to implement the policy to obtain immunity.
(Morgan, at pp. 155–156.) The court in Nguyen “reluctantly”
affirmed summary judgment in favor of the city while inviting
the Legislature to change section 17004.7. (Nguyen, at pp. 1163,
1168–1169.)
12
In response to that invitation, the Legislature amended
section 17004.7 to add an implementation requirement in the
form of the current training and promulgation provisions.
(Morgan, supra, 246 Cal.App.4th at pp. 158–159.) The court in
Morgan concluded that this legislative history “highlights the
important public policy underlying the promulgation requirement
in current section 17004.7.” (Id. at p. 159.)
Like the court in Morgan, we analyze section 17004.7 using
“settled principles of statutory interpretation.” (Morgan, supra,
246 Cal.App.4th at p. 151.) Our task is to “ ‘ “ ‘ “ascertain the
intent of the lawmakers so as to effectuate the purpose of the
statute.” ’ ” ’ ” (Ibid., quoting Apple Inc. v. Superior Court (2013)
56 Cal.4th 128, 135.) In doing so, we “begin by examining the
statutory language, giving the words their usual and ordinary
meaning.” (Day v. City of Fontana (2001) 25 Cal.4th 268, 272
(Day).) We construe the statutory language in context and
attempt to harmonize provisions relating to the same subject
matter if possible. (Morgan, 246 Cal.App.4th at p. 151, citing
Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) If the
language is not ambiguous, “we presume the lawmakers meant
what they said, and the plain meaning of the language governs.”
(Day, supra, 25 Cal.4th at p. 272.) However, if there is
ambiguity, we may “resort to extrinsic sources, including the
ostensible objects to be achieved and the legislative history.”
(Ibid.) We then “ ‘ “select the construction that comports most
closely with the apparent intent of the Legislature, with a view to
promoting rather than defeating the general purpose of the
statute, and avoid an interpretation that would lead to absurd
consequences.” ’ ” (Ibid., quoting People v. Coronado (1995) 12
Cal.4th 145, 151.)
13
We disagree with the Morgan court’s conclusion that
section 17004.7, subdivision (b)(2) is unambiguous. In finding it
so, the court in Morgan did not consider any other possible
constructions of the provision. In particular, the court did not
consider the alternative construction that the City suggests here.
The City argues that the definition of “promulgation” in
section 17004.7, subdivision (b)(2) means that the public agency
must implement its own requirement that all of its peace officers
certify their receipt and understanding of the agency’s pursuit
policy. While the agency must require all officers to sign a
written acknowledgment, the agency need not prove that
100 percent of its officers have actually complied with that
requirement to obtain immunity.
This construction is not only plausible, but is more
consistent with the language of the subdivision. As mentioned,
the final sentence of section 17004.7, subdivision (b)(2) states
that “[t]he failure of an individual officer to sign a certification
shall not be used to impose liability on an individual officer or a
public entity.” This language on its face supports the City’s
proposed interpretation, which we find persuasive.
The court in Morgan found no inconsistency between this
sentence and the court’s conclusion that “promulgation” requires
100 percent compliance because it distinguished between the
concepts of “ ‘impos[ing] liability’ ” and precluding immunity.
(See Morgan, supra, 246 Cal.App.4th at p. 160.) The court did
not identify any basis for this distinction in the language of the
statute or in the legislative history, and we find none.
The failure of an individual officer to execute a written
certification does in fact operate to “impose liability” on a public
agency when it makes immunity unavailable for a claim on which
14
the agency would otherwise be liable. Thus, the Morgan court’s
interpretation fails to give effect to the plain language of the
sentence.
The court’s distinction between imposing liability and
removing immunity is even more strained when considering
claims against an individual officer (which the final sentence of
section 17004.7, subdivision (b)(2) also addresses). We must
interpret section 17004.7, subdivision (b)(2) in the context of the
statutory scheme of which it is a part. (Lexin v. Superior Court
(2010) 47 Cal.4th 1050, 1090–1091 [“It is a basic canon of
statutory construction that statutes in pari materia should be
construed together so that all parts of the statutory scheme are
given effect”].) Section 17004 provides broad immunity to public
employees who cause the injury or death of another while
pursuing a suspect in an emergency vehicle in the line of duty.
Thus, there is no obvious way in which a police officer’s failure to
certify his or her understanding of a pursuit policy could be used
to “impose” individual liability other than by somehow revoking
the broad immunity that section 17004 would otherwise provide.
Moreover, if the Legislature had intended to make public
agency immunity in section 17004.7 dependent upon 100 percent
compliance with the written certification requirement, it could
have said so much more directly. Rather than stating that
promulgation “shall include . . . a requirement,” it could simply
have said that promulgation “means” written certification by all
officers. (See § 17004.7, subd. (b)(2).) The Legislature used
precisely that construction in section 17004.7, subdivision (d) in
defining the training requirement, where it stated that
“ ‘[r]egular and periodic training’ under this section means
annual training” that includes specified elements. (Italics
15
added.) Thus, the City’s proposed interpretation of the
promulgation requirement makes sense when harmonized with
other sections of the statute.
We must also interpret section 17004.7 in light of the
purposes of the statute, with attention to whether a particular
interpretation would “ ‘ “lead to absurd consequences.” ’ ” (Day,
supra, 25 Cal.4th at p. 272.) The City’s interpretation would
fulfill the Legislature’s goal of motivating a public agency to
implement its pursuit policy—including by requiring its officers
to certify their receipt and understanding of that policy in
writing—even if a few officers fail to fulfill that requirement. On
the other hand, requiring 100 percent compliance as a condition
of immunity could potentially result in the absurd circumstance
that the failure of a single officer to complete a written
certification in an agency employing thousands could undermine
the agency’s ability to claim immunity, even though the agency
conscientiously implemented its pursuit policy.
The City’s proposed interpretation is also consistent with
the legislative history of section 17004.7. As the court observed
in Morgan, and as Ramirez argues here, the history of the 2007
amendment to section 17004.7 certainly shows that the
Legislature viewed the promulgation requirement as an
important provision to ensure that public agencies actually
implement the policies that they nominally adopt. However, the
fact that promulgation is important does not shed light on
precisely what it must involve. Consider a public agency that
diligently and effectively promulgates its pursuit policy through
dissemination of the written policy, regular training, and a
requirement for written certification by its officers, including
consequences for those who fail to certify. Such conscientious
16
conduct seemingly recognizes the importance of implementing
the pursuit policy that the agency has adopted. Nevertheless,
under Ramirez’s interpretation, such an agency would not be
entitled to immunity if a particular officer fails to meet the
requirements of his or her job by neglecting or refusing to
complete a written certification. We should not assume that the
Legislature intended such extreme and arbitrary consequences
simply from the fact that it regarded the promulgation
requirement as an important addition to section 17004.7.7
The legislative history also shows that the Legislature did
not intend to abandon the concept of a “balance between public
entity immunity and public safety” in amending section 17004.7.
(See Nguyen, supra, 103 Cal.App.4th at p. 1169.) Section 17004.7
has historically served two purposes: It was intended to “free
7 The court in Morgan also found support for its
interpretation in POST Commission guidelines stating that peace
officers must “ ‘sign an attestation form (doc) that states they
have “received, read, and understand” the agency pursuit
policy.’ ” (See Morgan, supra, 246 Cal.App.4th at p. 159.) But
the issue here is not whether a written certification requirement
exists, but rather what the consequences are if an officer fails to
meet that requirement. The City does not dispute that public
agencies must implement a written certification requirement; it
simply claims that Vehicle Code section 17004.7 does not itself
require written certification by all officers as a condition of
immunity. Moreover, section 17004.7 refers to the POST
Commission guidelines only with respect to the training
requirements specified in subdivision (d), not with respect to the
promulgation provision contained in subdivision (b). (See Veh.
Code, § 17004.7, subd. (d) [requiring compliance with the training
guidelines established by the POST Commission pursuant to
Penal Code section 13519.8].)
17
police officers from the fear of exposing their employers to
liability when engaging in high-speed pursuits,” and also to
“reduce the frequency of accidents involving the public by
encouraging public agencies to adopt safe pursuit policies.”
(Billester v. City of Corona (1994) 26 Cal.App.4th 1107, 1122.)
Before adopting the 2007 amendment to section 17004.7, the
Legislature rejected various bills that would have restricted
immunity by making it dependent on individual circumstances,
such as (1) whether the particular officers involved in an incident
actually complied with their agency’s pursuit policy, (2) whether
they acted in “bad faith”, or (3) whether they had a reasonable
suspicion that the fleeing suspect had committed a violent felony.
The Legislature rejected those changes in response to concerns by
law enforcement agencies that the changes were too extreme and
would lead to “protracted litigation regarding every pursuit that
results in injury to a third party.” (Sen. Com. on Judiciary,
Analysis of Sen. Bill No. 719 (2005–2006 Reg. Sess.) as amended
May 5, 2005, pp. 2, 7–8.) Thus, in amending section 17004.7 the
Legislature was careful not to move too far in the direction of
protecting public safety at the expense of a predictable and
certain immunity provision.
The interpretation of the promulgation provision that the
court adopted in Morgan (and that Ramirez urges here) sacrifices
such predictability and certainty. Under that interpretation, an
agency could do all within its power to implement its pursuit
policy but still be liable if a single negligent or recalcitrant officer
happens to be out of compliance with the agency’s certification
requirement at the time an incident occurs. Conditioning an
agency’s entitlement to immunity on the behavior of particular
officers is inconsistent with the approach that the Legislature
18
adopted in amending section 17004.7 to ensure that agencies took
appropriate steps to implement their pursuit policies.8
We therefore agree with the City that “promulgation” in
section 17004.7, subdivision (b)(2) means that, to obtain
immunity, a public agency must require its peace officers to
certify in writing “that they have received, read, and understand”
the agency’s pursuit policy. However, if the agency actually
imposes such a requirement, complete compliance with the
requirement is not a prerequisite for immunity to apply.
There is no dispute here that the City actually had a
requirement that its officers execute the requisite written
certification. Saffell testified that the City provides training on
its pursuit policies on an annual basis to all of its active duty
police officers, and that, “[i]n providing such training materials to
[City police] officers, each officer is required to certify
electronically (in some form) that he or she has read, received,
and understood our policies.” In opposing summary judgment,
Ramirez did not controvert the existence of the City’s certification
requirement, but claimed only that the City “failed to
‘promulgate’ its pursuit policy to all of its peace officers where
each and every officer certified in writing that they have received,
read, and understood the policy.” We therefore reject Ramirez’s
claim that the City did not adequately promulgate its pursuit
policy under section 17004.7, subdivision (b)(2).
8 As discussed above, this same concern that a public
agency’s liability not depend upon the behavior of a particular
officer is also reflected in the final sentence of section 17004.7,
subdivision (b)(2), stating that the “failure of an individual officer
to sign a certification” shall not be used to impose liability.
19
c. The City’s pursuit policy met the criteria of
section 17004.7, subdivision (c).
Section 17004.7, subdivision (c) requires public agencies to
address 12 specific standards in the pursuit policies that they
adopt. The standards provide guidance to officers on various
aspects of the decisions that they must make in considering
whether to initiate or continue a pursuit, and how the pursuit
should be conducted.9 Section 17004.7 requires public agencies
to address these standards in their policies, but leaves to the
agencies to determine the substance of the instruction to provide
to their officers on each standard. The judicial obligation “to
interpret police policies for purposes of . . . section 17004.7 does
not give us the supervisory power to dictate good (or bad) law
enforcement tactics.” (McGee v. City of Laguna Beach (1997)
56 Cal.App.4th 537, 548 (McGee); see also Ketchum v. State of
9 The 12 standards direct public agencies to provide
guidance to officers in determining: (1) under what
circumstances to initiate a pursuit; (2) the total number of law
enforcement vehicles authorized to participate in a pursuit, and
their responsibilities; (3) the communication procedures to be
followed during a pursuit; (4) the role of the supervisor in
managing and controlling a pursuit; (5) driving tactics and the
circumstances under which the tactics may be appropriate;
(6) authorized pursuit intervention tactics, including “blocking,
ramming, boxing, and roadblock procedures”; (7) the factors to be
considered by a peace officer and supervisor in determining
speeds throughout a pursuit; (8) the role of air support, where
available; (9) when to terminate or discontinue a pursuit;
(10) procedures for apprehending an offender following a pursuit;
(11) effective coordination, management, and control of
interjurisdictional pursuits; and (12) reporting and postpursuit
analysis “as required by Section 14602.1.” (§ 17004.7, subd. (c).)
20
California (1998) 62 Cal.App.4th 957, 969 (Ketchum) [“We decline
to abandon our role as judges and legislate police policy by
dictating the elements of the pursuit policy”].)
Ramirez challenges the adequacy of the City’s policy under
subdivision (c)(5) and (6) of section 17004.7 (i.e., driving tactics
and pursuit intervention tactics). Ramirez argues that the City’s
pursuit policy was deficient because it did not provide guidance
on the circumstances in which pursuit intervention tactics may
be used, but rather left “full discretion” to individual officers to
use such tactics “as they saw fit.” Ramirez cites cases holding
that a policy is inadequate when it simply advises officers to
exercise their discretion. (See Colvin, supra, 11 Cal.App.4th
1270; Payne v. City of Perris (1993) 12 Cal.App.4th 1738 (Payne).)
The cases on which Ramirez relies involved policies that
failed to provide any objective standards to guide officers’
discretion. For example, in Colvin (which involved a claim
brought against the City based upon a prior pursuit policy), the
policy at issue simply stated that an officer could initiate a
pursuit when the officer “ ‘has reasonable cause to stop a vehicle
and the driver fails to stop as required by law,’ ” and that the
officer should “ ‘consider’ ” discontinuing a pursuit “ ‘when it
poses a serious and unreasonable risk of harm to the pursuing
officer or to the public balanced against the seriousness of the
violations, or when directed to do so by a supervisor.’ ” (Colvin,
supra, 11 Cal.App.4th at p. 1283.) The court concluded that, in
drafting its policy, the City apparently made a calculated decision
to “clothe its officers with maximum discretion and flexibility.”
(Id. at p. 1285.) The court found that the policy did not meet the
standards of section 17004.7 as it lacked “specific pursuit
guidelines.” (Ibid.)
21
Similarly, in Payne, the policy provision at issue merely
instructed that “ ‘[o]fficers should consider discontinuing a
pursuit when it poses a serious and unreasonable risk of harm to
the pursuing officer or to the public, balanced against the
seriousness of the violation(s). [¶] Justification to continue a
pursuit will be based on what reasonably appears to be the facts
known or perceived by the officer.’ ” (Payne, supra, 12
Cal.App.4th at p. 1746.) The court concluded that this language
simply memorialized officers’ “unfettered discretion” without any
objective standards to “control and channel” that discretion. (Id.
at p. 1747.)
In contrast to those cases, courts have found public
agencies’ policies sufficient under section 17004.7 when they
provide guidance to officers concerning factors to consider, even if
they also leave room for the exercise of individual discretion in
particular cases. For example, in McGee, the court distinguished
the City of Laguna Beach’s (Laguna Beach) policy at issue in that
case from the policies in Colvin and Payne, finding that the
Laguna Beach policy “lists factors pursuing officers should
consider in evaluating whether to begin or abandon a pursuit.”
(McGee, supra, 56 Cal.App.4th at pp. 543–544.) Those factors
included “seriousness of the offense, time of day, traffic and
weather conditions, speed, danger to officers and others, and
other methods of arrest.” (Id. at p. 544.)
The court concluded that the objective factors identified in
the Laguna Beach policy were sufficient under section 17004.7
even though the policy contained a provision stating that
“ ‘nothing in this policy shall be construed to impose a ministerial
duty on any officer of the department, and all related conduct
shall be considered discretionary.’ ” (McGee, supra, 56
22
Cal.App.4th at p. 544.) The discretion that the policy provided
was guided by the objective factors identified in the policy and
did not leave “unfettered” discretion to the officers. (Ibid.; see
also Ketchum, supra, 62 Cal.App.4th at p. 970 [distinguishing
Payne on the ground that the California Highway Patrol pursuit
policy at issue in Ketchum “sets forth certain circumstances
under which an officer should usually abort the pursuit”]; Alcala
v. City of Corcoran (2007) 147 Cal.App.4th 666, 676 (Alcala)
[finding a pursuit policy sufficient where it “does not stop with
generalized statements instructing officers to use good judgment
and weigh the risks involved,” but also identified specific
criteria].)
As in McGee, Ketchum and Alcala, the City’s policy here
contained specific guidance concerning the circumstances in
which a pursuit is appropriate and the factors to consider in
deciding whether to continue or terminate the pursuit. The
policy directed that a pursuit should be initiated “only when a
law violator clearly exhibits the intention to avoid arrest by using
a vehicle to flee, or when a suspected law violator refuses to stop
and uses a vehicle to flee.” In deciding whether to pursue,
officers were to consider: “1. The type of violation, whether
actual or suspected [¶] 2. Accurate vehicle description and plate
number [¶] 3. Pursuit speeds, pedestrian and traffic conditions.”
The officers involved in a pursuit were also directed to
“continually question whether the seriousness of the violation
reasonably warrants continuation of the pursuit,” and were
responsible for discontinuing the pursuit when “there is a clear
and unreasonable danger to the public or to the pursuing
officers.” The policy provided “possible indicators” of a clear and
unreasonable danger, including: “1. When speed dangerously
23
exceeds the normal flow of traffic [¶] 2. When pedestrian or
vehicular traffic necessitates unreasonable and unsafe
maneuvering of the vehicle [¶] 3. Duration and location of
pursuit [¶] 4. Volume of vehicular traffic [¶] 5. Volume of
pedestrian traffic [¶] 6. Time of day [¶] 7. Weather conditions [¶]
8. Road conditions [¶] 9. Familiarity of the pursuing officer with
the area of the pursuit [¶] 10. Quality of radio communications
between pursuing units and the dispatchers [¶] 11. Capability of
the police vehicles involved [¶] 12. Whether the suspect(s) is
identified and can be apprehended at a later point in time [¶]
13. The overall risk posed to the public by the escape of the
suspect(s), and the likelihood that the suspect(s) [sic] actions will
continue if that person is not apprehended.”
The policy contained a separate section (section I) on
pursuit driving tactics, addressing issues such as “paralleling of
the pursuit route,” the units that are to drive “Code-3” (i.e., with
lights and siren), caravanning, and restrictions on passing.
Section I also addressed “forcible stop tactics,” including the PIT
maneuver that Officer Nguyen used in this case. The policy
instructed that all forcible stop tactics “shall only be used as a
last resort in order to stop a fleeing violator in keeping with
Department guidelines regarding use of force and pursuit policy.”
With respect to the PIT maneuver specifically, the policy stated
that the maneuver “can be used to stop a pursuit, as soon as
possible, with Watch Commander approval, if practical.”
While the specific instructions on forcible stop tactics were
brief and general, they must be read in light of the policy as a
whole.10 (See McGee, supra, 56 Cal.App.4th at p. 547 [“We reach
10 Ramirez argues that the policy in effect at the time of the
incident at issue in this case was inadequate in comparison to the
24
our decision based upon the totality of the 20-page Laguna policy,
including its communications component, and its repeated
emphasis on pubic and officer safety in balancing the risks of a
pursuit against the need to immediately capture an offender”].)
Section I.6 of the City’s policy in fact directed consideration of
other portions of the pursuit policy in making a decision about
forcible stop tactics by stating that those tactics should be used
“in keeping with Departmental . . . pursuit policy.”11
The other policy provisions discussed above provided
specific criteria for the City’s officers to consider in balancing the
need for particular pursuit tactics against the danger to the
public and to the officers. In particular, the section concerning
more detailed policy that the City adopted shortly after that
incident had occurred. But that is not a relevant comparison.
Our task is not to decide whether some other policy might have
been better than the policy the City used at the time of the
incident, but only whether the policy at issue adequately
addressed the specific standards identified in section 17004.7,
subdivision (c). (McGee, supra, 56 Cal.App.4th at p. 548.)
11 Ramirez argues that the City’s designated person most
knowledgeable on the topic of its pursuit policies, Detective
Michael Ross, admitted at his deposition that the City’s policy
failed to provide any instruction as to the specific conditions and
circumstances in which a PIT maneuver should be used. While
Ross initially testified that he could not identify any such
instruction in the policy, he later corrected his testimony to state
that “[t]here’s no separate factors, but a PIT is governed by the
same policy factors as a use of force & pursuit.” We are tasked
with reviewing the adequacy of the policy itself as a matter of
law. (§ 17004.7, subd. (f).) The language of the written policy
supports Ross’s corrected testimony that other policy factors also
apply to the decision to use a PIT maneuver.
25
initiation of a pursuit stated specifically that officers should
consider “[p]ursuit speeds, pedestrians and traffic conditions”
along with the type of violation and the accurate identification of
the vehicle “[w]hen deciding the merits of initiating any pursuit-
related activities.”12 (Italics added.)
These policy provisions did not provide unfettered
discretion to pursuing officers, as Ramirez claims. Rather, they
“appropriately ‘control[led] and channel[ed]’ the pursuing officer’s
discretion” in deciding whether to use forcible tactics to stop a
pursuit and apprehend a suspect. (McGee, supra, 56 Cal.App.4th
at p. 546.) We therefore conclude that the City’s pursuit policy in
place at the time of the incident met the standards of section
17004.7, subdivision (c).
12 Presumably accurate identification of the pursued
vehicle, including a correct plate number, would increase the
likelihood that a suspect could be apprehended later if the
pursuit were discontinued.
26
DISPOSITION
The judgment is affirmed. The City of Gardena is entitled
to its costs on appeal.
LUI, J.
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.
27