Billester v. City of Corona

Opinion

— On June 1, 1991, Jason Billester, then 13 years old, was injured when the vehicle in which he was a passenger was broadsided by a vehicle driven by a juvenile suspected of vehicle theft fleeing from a Corona police officer. The officer had pursued the juvenile through a red traffic signal and a stop sign. The juvenile was travelling at 55 to 65 miles an hour when the collision occurred at a third controlled intersection.

Jason and his parents (collectively referred to as plaintiffs) sued the City of Corona and the Corona Police Department (sometimes collectively referred to as Corona) and other parties not involved in this appeal for personal injuries and medical expenses. The trial court granted Corona’s motion for

I

mmunity Under Vehicle Code Section 17004.7

Section 17004.7 confers immunity on a public agency from liability arising from certain collisions occurring during vehicular pursuits by peace officers when the agency has adopted a written vehicular pursuit policy meeting certain minimum standards. However, the Legislature has worded section 17004.7 narrowly to grant immunity only when a written pursuit policy “complies with certain specific points to encourage safe police pursuits.” (Weiner v. City of San Diego (1991) 229 Cal.App.3d 1203 , 1210 [ 280 Cal.Rptr. 818 ].)

The trial court determined that the pursuit policy met the requirements of section 17004.7, subdivision (c), and Corona was therefore immune from liability. Plaintiffs’ challenge to this determination presents solely issues of law, and this court must make an independent determination of the issues. (§ 17004.7, subd. (d); Weiner v. City of San Diego, supra, 229 Cal.App.3d at p. 1211.)

A. Supervisory Control of Pursuit.

Plaintiffs contend that the pursuit policy fails to satisfy section 17004.7, subdivision (c)(1) which requires provision for supervisory control of the pursuit, if available.

Section 4420 of the pursuit policy addresses supervisory control of pursuits. The section states that the supervisor shall assume responsibility for:

“Seeing that no more than the required number of units is involved in the pursuit.

“Seeing that available aircraft have been requested.

“Seeing that proper radio frequency is being used.

“Affected allied agencies are being notified.

“The decision to request another agency’s assistance.

“The decision to grant assistance in response to the request of another agency.

“The decision whether or not the pursuit should be discontinued.”

In addition, section 4420.05 provides that the supervisor shall go to the place where the pursuit terminates to provide guidance and supervision.

Although several courts have recently examined the sufficiency of vehicular pursuit policies of other public entities (Berman v. City of Daly City (1993) 21 Cal.App.4th 276 [ 16 Cal.Rptr.2d 143 ]; Payne v. City of Perris (1993) 12 Cal.App.4th 1738 [16 Cal.Rp1r.2d 143]; Colvin v. City of Gardena (1992) 11 Cal.App.4th 1270 [ 15 Cal.Rptr.2d 234 ]; Weiner v. City of San Diego, supra, 229 Cal.App.3d 1203 ), none of those cases specifically addressed the pursuit policies’ compliance with section 17004.7, subdivision (c)(1). However, in our view, Corona’s pursuit policy adequately provides for supervisory control of pursuits. Numerous sections of the pursuit policy as set forth above call for the supervisor’s being informed of the pursuit at the first opportunity and being involved as much as possible in decisions concerning the pursuit.

Plaintiffs contend the pursuit policy is inadequate because section 4418 does not require that a supervisor control the pursuit if a supervisor is available; rather, section 4418 requires only that a supervisor be notified. This argument ignores section 4420, which provides, “[u]pan being notified of a pursuit, the supervisor shall assume responsibility for the following. . . .”

Plaintiffs also contend the pursuit policy is inadequate because sections 4412.10 and 4418 of the pursuit policy are internally inconsistent. Section 4412.10 provides that the senior officer in the unit initiating the pursuit is accountable for the operation of the unit during the pursuit, the decision to discontinue pursuit, assuming command when the pursuit ends until a higher authority arrives, and requesting a second unit. Thus, section 4412.10 addresses the responsibilities of the officer on the scene. Section 4412.10 creates no conflict with the responsibilities of a supervising officer at headquarters, as defined in sections 4418 and 4420. The pursuit policy meets the requirements of section 17004.7, subdivision (c)(1).

Plaintiffs next contend the policy fails to specify adequate procedures for “designating the primary pursuit vehicle and for determining the total number of vehicles to be permitted to participate at one time in the pursuit.” (§ 17004.7, subd. (c)(2).)

1. Designation of Primary Vehicle.

Although the pursuit policy does not use the term “primary pursuit vehicle,” the pursuit policy makes clear which unit fills that role. Section 4412 defines the responsibilities of the unit initiating pursuit. Among other things, the initiating officer must notify the communications center and provide specific information about the pursuit. (§ 4412.05.) The initiating officer has other defined responsibilities for the pursuit as set forth in section 4412.10. For purposes of Vehicle Code section 17004.7, subdivision (c)(2), the policy makes it clear that the unit initiating the pursuit is designated the primary pursuit vehicle.

2. Determining Number of Units Involved.

Section 4406 states, “Normally, pursuits should be limited to two police vehicles.” Section 4414 states, “The officer(s) in the second unit joining the pursuit shall immediately notify the Communications Center that there are two units in the pursuit.”

Section 4216 states that the immediate supervisor shall determine the need for a second police vehicle to respond to an emergency scene and shall order the second unit to do so. The supervisor shall also inform the first unit and the dispatcher and shall confirm that the first unit and the dispatcher understood the message.

Plaintiffs argue that although the pursuit policy states that normally only two police vehicles are to be involved in a pursuit, the policy does not state the circumstances that would justify a greater number of vehicles, and the policy does not make clear who has responsibility for assigning additional vehicles to the pursuit. Thus, plaintiffs argue, the pursuit policy does not meet the requirements of Vehicle Code section 17004.7, subdivision (c)(2).

Only one published case has reviewed the requirements of Vehicle Code section 17004.7, subdivision (c)(2). (Colvin v. City of Gardena, supra, 11 Cal.App.4th at p. 1286.) The policy under review in Colvin provided that “. . . the number of police units involved in a pursuit may vary with the circumstances and should be kept to a minimum. It directs the second and

Here, in contrast, the pursuit policy specifies that normally only two police vehicles are to be involved in a pursuit, and the supervisor has responsibility for seeing that only the required vehicles are involved. (§ 4420.) The pursuit policy meets the requirements of section 17004.7, subdivision (c)(2).

C. Coordinating Operations With Other Jurisdictions.

Plaintiffs contend that the pursuit policy does not meet the requirement of section 17004.7, subdivision (c)(3) of providing “procedures for coordinating operations with other jurisdictions.”

Sections 4408 and 4410 of the pursuit policy address pursuits extending into and originating in other jurisdictions. Section 4408 provides, “When a pursuit extends into an allied jurisdiction, the supervisor (or senior officer) in the pursuit should determine if the other area or allied agency should assume the pursuit. The following should be considered, HO The distance involved [IQ The pursuing officer’s possible unfamiliarity with the new area HO Other pertinent facts HO If the pursuit is assumed by the other agency, the initiating officer should proceed to the termination point (if within a reasonable distance) as the back-up unit in order to provide information which may be required for the arrest. The assuming agency will then become the primary pursuer.”

Section 4410 provides that for pursuits originating in other jurisdictions, “Notification by another agency of a pursuit in progress shall not be construed as a request to join in the pursuit. HD Units shall not become involved in pursuits unless requested to do so. HO Requests for assistance shall be reviewed and approved by a supervising officer or officer in charge prior to responding to the requests.”

In addition, section 4418 provides that the dispatcher must “[n]otify[] allied agencies and specify[] if assistance is or is not requested, as directed

No published case has yet reviewed the requirements of section 17004.7, subdivision (c)(3). However, we conclude the pursuit policy complies with the requirements of section 17004.7, subdivision (c)(3). The pursuit policy establishes the supervisor’s responsibility for notifying other agencies and for deciding whether to request assistance from other agencies and whether to respond to other agencies’ requests for assistance. The policy establishes that the initiating vehicle becomes the back-up vehicle once another agency assumes pursuit. The policy restricts units from responding to other agencies’ pursuits absent a request for assistance and approval by a supervisor. These procedures are adequate under section 17004.7, subdivision (c)(3).

D. Guidelines for Initiating and Terminating Pursuits.

Plaintiffs contend that Corona’s vehicular pursuit policy is deficient in that it does not provide guidelines to officers for initiating and terminating vehicular pursuits, but rather leaves such determinations up to the subjective judgment of the officers.

The pursuit policy provides, “4220.05 Pursuit. In a pursuit, the office[r] must consider: [¶] Time [¶] Speed [¶] Distance [¶] Importance of, and the necessity for, apprehension [¶] Traffic in the immediate vicinity H] Assistance requested or available [¶] If at any point during the pursuit the officer feels that his life is in peril, the officer shall desist from further pursuit. When the officer knows that the person being pursued is intent upon continuing to evade arrest, the officer shall: [¶] Set up advanced assistance via radio [¶] If possible, reduce speed [¶] Notify dispatcher [¶] Proceed.”

“[4202] When to Initiate a Pursuit [¶] Pursuits should normally be initiated when, in the officer’s judgment, an individual clearly exhibits an intent to avoid arrest by using a vehicle to flee. The majority of pursuits originate from misdemeanor violations and this factor should be considered in the officer’s decision.

“The objective of a pursuit is to apprehend a violator who refuses to voluntarily comply with the law requiring him to stop.

“The intent of the pursuit is to apprehend the subjects) and bring them to trial for the offense(s) committed.

“The key to successful conclusion of a pursuit and apprehension of evading vehicles is dependent upon proper vehicle operation, proper self-discipline, and sound professional judgment.”

With respect to discontinuing pursuits, the pursuit policy states, “4404 When to Discontinue a Pursuit

“Under most circumstances, pursuits should be discontinued when:

“In the pursuing officer’s judgment, a serious hazard is present to the public and/or the pursuing officers.

“The pursued vehicle’s location is no longer definitely known.

“The subjects) can be identified to the point where later apprehension can be accomplished.

“Directed to do so by a supervisor.”

To be adequate under section 17004.7, subdivision (c)(4) a vehicular pursuit policy “must do more than simply advise the pursuing officers to exercise their discretion and use their best judgment.” (Payne v. City of Perris, supra, 12 Cal.App.4th at pp. 1746-1747.) Instead, “. . . the policy must control and channel the pursuing officer’s discretion by providing objective standards by which to evaluate whether the pursuit should be initiated or terminated. At the very least it should instruct and direct the officers on what factors should be considered in deciding whether to pursue the fleeing suspect.” (Id. at p. 1747, fns. omitted.)

The policy this court rejected as inadequate in Payne merely stated that a pursuit should be discontinued when it “poses a serious and unreasonable risk of harm to the public or to the officer.” (Payne v. City of Perris, supra, 12 Cal.App.4th at pp. 1747-1748.) The court noted that the policy failed to give the officers any guidance in how to determine whether the pursuit posed a serious and unreasonable risk of harm. Rather, the policy simply stated that the determination would be based on what was reasonably known to or perceived by the officers. The court concluded this policy left each officer free to interpret the guideline by whatever subjective standards he or she chose. The court therefore found the guideline was the equivalent of no guideline at all, in that it failed to provide any objective criteria to assist the officer in the exercise of discretion. (Ibid.)

The court held that this policy did not meet the minimum requirements for immunity under section 17004.7. The court explained, “Although Daly City’s pursuit policy does set forth general principles on initiating a pursuit, it does not provide officers in the field with sufficient ‘guidelines for determining when the interests of public safety and effective law enforcement justify a vehicular pursuit ....’(§ 17004.7, subd. (c)(4).) For example, according to the policy, a pursuit could be initiated based upon any offense, even a minor Vehicle Code violation. . . .

“Moreover, based on the declared intent of the pursuit policy, it is unclear whether the ‘threat to safety’ refers to officer safety or public safety. The pursuit policy states: ‘These guidelines are intended to reduce the hazards to officers engaged in hot pursuit and the public criticism following accidents involving pursuing vehicles.’ [Citation.] Neither of these intentions coincide with the purpose of section 17004.7, subdivision (c)(4), which is to provide guidelines relating to public safety and effective law enforcement.

“Furthermore, there are no reasonably specific criteria to guide officers in determining when a threat to public safety is out of proportion to the offense or offenses involved. ‘[T]he policy must do more than simply advise the pursuing officers to exercise their discretion and use their best judgment.’ [Citation.] The pursuit policy before us leaves that determination to the officer’s subjective judgment. Such vague language does not meet the requirements of section 17004.7, subdivision (c)(4).) [Citations.]” (Berman v. City of Daly City, supra, 21 Cal.App.4th at p. 283.)

With respect to guidelines for termination of pursuits, in Berman, Daly City’s pursuit policy stated that “ ‘The officer is expected to use sound professional judgment in deciding whether or not the threat to safety of further pursuit outweighs the benefit to the public should the arrest be made.’ [Citation.]” (Berman v. City of Daliy City, supra, 21 Cal.App.4th at p. 283.) The policy added additional language identical to that of section 4404 of Corona’s pursuit policy.

Here, in contrast, Corona’s pursuit policy also lists the following factors an officer should consider during pursuits: time, speed, distance, the importance of and necessity for apprehension of the suspect, traffic in the vicinity, and the availability of assistance. The officer must also consider whether his life is in danger. (§ 4220.05.) These factors provide the additional guidance the courts found lacking in Payne and Berman. We conclude Corona’s pursuit policy meets the requirements of section 17004.7, subdivision (c)(4).

n

Equal Protection Challenge to Section 17004.7

Plaintiffs next contend that section 17004.7 is unconstitutional because it denies them equal protection of the law. Article I, section 7 of the California Constitution guarantees that every person “may not be . . . denied equal protection of the laws” (id., subd. (a)) and that “[a] citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.” (Id., subd. (b).) Similarly, section 1 of the Fourteenth Amendment to the United States Constitution provides that no state may “deny to any person within its jurisdiction the equal protection of the laws.”

Although the state may constitutionally draw distinctions between different groups of individuals, at a minimum the state must provide that “ ‘persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’ [Citations.]” (Brown v. Merlo (1973) 8 Cal.3d 855 , 861 [ 106 Cal.Rptr. 388 , 506 P.2d 212 , 66 A.L.R.3d 505 ]) Moreover, a legislative classification of persons must bear a rational relationship to the statutory objective. (Ibid.) The rational basis standard applies to legislative classifications among personal injury plaintiffs. (Woods v. Young (1991) 53 Cal.3d 315 , 327 [ 279 Cal.Rptr. 613 , 807 P.2d 455 ].)

The court in Weiner wrote, “[The Legislature] narrowly worded the statute to only grant immunity where the suspect’s vehicle is involved in the accident with an innocent third party and where the public agency has satisfied the requirement of a written policy which complies with certain

Courts have identified two legislative objectives for the public entity immunity established by section 17004.7. First, the statute is said to free police officers from the fear of exposing their employers to liability when engaging in high-speed pursuits. Second, it is said to reduce the frequency of accidents involving the public by encouraging public agencies to adopt safe pursuit policies. (Kishida v. State of California (1991) 229 Cal.App.3d 329 , 335-338 [ 280 Cal.Rptr. 62 ]; Weiner v. City of San Diego, supra, 229 Cal.App.3d at pp. 1209-1210.) Plaintiffs contend neither of these objectives provides a rational basis for the statute’s classifications.

Plaintiffs argue that although the state could deny recovery to all innocent persons injured during pursuits, section 17004.7 invidiously penalizes only certain innocent persons. Plaintiffs also contend the classifications established by section 17004.7 do not rationally relate to the legislative purpose of reducing the frequency of accidents involving the public during pursuits. Plaintiffs contend that the statute, in denying recovery to persons injured by suspects’ vehicles as opposed to other instrumentalities foreseeably involved in the pursuit, does not protect the public. They argue that the safety of the public does not vary depending upon whether the suspect, the police, or a third party strikes the victim. They further argue that all innocent persons injured by any instrumentalities during a pursuit are similarly situated with respect to the purpose of the law, yet they do not receive like treatment.

The statute also establishes a distinction between victims struck by suspects in jurisdictions that have established pursuit policies and those that have not. In the first instance, the victim is not entitled to recovery; in the second instance, the victim may recover. Plaintiffs contend the legislative scheme makes it entirely fortuitous whether a particular person will be entitled to recover for injuries suffered during a pursuit, and the statute is thus irrational.

Plaintiffs note that in Malloy v. Fong (1951) 37 Cal.2d 356 [ 232 P.2d 241 ] and Silva v. Providence Hospital of Oakland (1939) 14 Cal.2d 762 [ 97 P.2d

In Muskopf v. Coming Hospital Dist. (1961) 55 Cal.2d 211 [ 11 Cal.Rptr. 89 , 359 P.2d 457 ], the court struck down the entire California governmental immunity scheme as it existed at the time. The Brown court observed, “Although the Muskopf decision itself did not rest on constitutional grounds, because the governmental immunity doctrine at issue was of judicial rather than legislative creation, the opinion’s reasoning — relying on the unequal treatment afforded similarly situated persons — parallels the constitutional principle embodied in our state and federal equal protection clauses. . . .” (Brown v. Merlo, supra, 8 Cal.3d at p. 881.)

Corona and amici curiae contend that section 17004.7 does not violate equal protection principles because the Legislature had a rational basis for drawing the distinctions the statute creates. Moreover, although plaintiffs contend the Legislature must either extend immunity to all cases or forego it completely, courts have rejected this “all or nothing” approach: “[T]he Legislature is not bound, in order to adopt a constitutionally valid statute, to extend it to all cases that might possibly be reached [citation], but is free to recognize degrees of harm and make restrictions affecting those classes of cases wherein the need is deemed to be clearest. [Citation.] The Legislature . . . is at liberty to select one phase of a problem for appropriate action without the necessity of including all others that might be affected in the same field of legislation.” (People v. Banner (1992) 3 Cal.App.4th 1315 , 1322-1323 [ 5 Cal.Rptr.2d 125 ].) However, “. . . when the legislative body proposes to address an area of concern in less than comprehensive fashion by ‘striking the evil where it is most felt,’ its decision as to where to ‘strike’ must have a rational basis in light of the legislative objectives.” (Id. at p. 1323.) Thus, we examine whether the Legislature could rationally have concluded that the need for public entity immunity is clearest when an injury is caused by a suspect fleeing from a peace officer of a public agency that has adopted a suitable written pursuit policy.

In enacting section 17004.7, the Legislature attempted to strike a balance between two competing needs: the need for giving law enforcement agencies adequate latitude in apprehending fleeing criminal suspects and the need to prevent traffic accidents. Section 17004.7 thus addresses the evils of the

The Legislature decided to strike the balance in cases in which a fleeing suspect injures another while the suspect is being pursued by a peace officer whose employer has adopted a written pursuit policy. Plaintiffs argue that the statute irrationally distinguishes between victims who are injured by the fleeing suspect and victims who are injured by all other instrumentalities, such as the peace officer’s vehicle, other vehicles in the pursuit area, and objects other than vehicles. However, because third party drivers and inanimate objects are not being pursued, the Legislature could reasonably conclude that they do not generally exhibit the high speeds and reckless driving characteristic of fleeing suspects in police pursuits. Thus, the Legislature could rationally conclude that third party drivers and inanimate objects do not pose the same risks to other members of the public during pursuits as do the suspects being pursued. The Legislature could also rationally assume that third party drivers generally comply with their duty to obey the rules of the road, including the duty to stop when police vehicles sounding sirens and flashing lights approach.

Plaintiffs also contend that the statute favors that class of victims injured by peace officers’ vehicles. Section 17004.7 does not cover accidents in which victims are injured by peace officers’ vehicles during pursuits of suspects. Unlike fleeing suspects, peace officers can be controlled by the public agencies for which they work. This provides a rational basis for distinguishing between the two categories. First, the Legislature could rationally have concluded it was appropriate to hold public agencies accountable for the actions of their employees during pursuits, but not for the actions of the suspects being pursued. Second, the Legislature could rationally have concluded that providing immunity when peace officers injure innocent persons during pursuits would have removed incentives for public agencies to ensure the safe driving of their peace officers during pursuits. Holding public agencies liable for injuries inflicted by their employees provides strong incentive for public agencies to control the training and skill of their peace officers and the mechanical soundness of police vehicles.

Finally, plaintiffs point out that the statute differentiates between victims based on whether a particular public agency has adopted a written pursuit policy or not. However, the Legislature could rationally have concluded that when a public agency adopts a pursuit policy with adequate guidelines, suspects pursued by peace officers employed by that agency pose less threat to the public than when no standards guide the officers’ conduct of the