Courtesy of James R. Touchstone, Esq. and Brittany E. Roberto, Esq.
On August 23, 2017, the Second District Court of Appeal, in Ramirez v. City of Gardena,[1] held that “promulgation” in California Vehicle Code section 17004.7(b)(2)[2] means that, to obtain immunity in a legal action resulting from a vehicle pursuit, 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, complete compliance with the requirement, if imposed by the agency, is not a prerequisite to immunity.
Background
In February 2015, City of Gardena (“City”) police officers received reports of an armed robbery. The suspects had reportedly fled in a blue 1980’s pickup truck. Officer Michael Nguyen observed a blue 1980’s pickup truck and saw that the occupants matched the description of the robbery suspects. Nguyen attempted to stop the vehicle by activating his emergency lights and siren, but the vehicle fled. Nguyen, followed by other patrol vehicles, pursued. Ultimately, Nguyen performed a “Pursuit Intervention Technique” (“PIT”) maneuver by ramming his patrol vehicle into the left rear portion of the bed of the truck. The truck lost control and collided into a light pole. Mark Gamar, a passenger in the pickup truck, died from injuries he sustained when the truck hit the pole.
At the time of the incident, the City had a written policy on vehicle pursuits, which was contained in the policy manual. The policy contained sections on initiating and discontinuing a vehicle pursuit as well as a section that addressed vehicular pursuit driving tactics. The section stated that the PIT maneuver “can be used to stop a pursuit, as soon as possible, with Watch Commander approval, if practical.” The section also instructed 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 at least an annual basis. The training included a requirement that officers 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 had completed the annual training within a year of the incident. According to testimony from the City’s custodian of records, all officers employed at the time of the incident had completed the certifications, but some forms may have been lost during the department’s move to a new station.
Gamar’s mother, Irma Ramirez, filed a wrongful death lawsuit against the City, alleging that Nguyen acted negligently and committed battery in conducting the PIT maneuver. The City moved for summary judgment, arguing that (1) the officers’ conduct in handling the pursuit was reasonable as a matter of law, and (2) the City was immune from liability under California Vehicle Code section 17004.7.[3] Although the trial court concluded there were issues of fact relating to the reasonableness of Nguyen’s actions in conducting the PIT maneuver, the court concluded that the City was immune under Section 17004.7 because the City promulgated its pursuit policy in compliance with Section 17004.7 and provided regular and periodic training to its officers.
Ramirez appealed, arguing that (1) the City’s pursuit policy did not adequately specify the criteria for employing pursuit intervention tactics, and (2) the City did not adequately promulgate its policy.
Discussion
The Second District Court of Appeal rejected both of Ramirez’s arguments and affirmed the trial court’s decision. As to Ramirez’s argument that the policy did not adequately specify the criteria for employing pursuit intervention tactics, the Court reviewed Section 17004.7(c), and concluded that the City’s pursuit policy met its criteria. Section 17004.7(c) sets forth the minimum standards that public agencies must address in adopting pursuit policies, including standards that provide guidance to officers on aspects of the decisions they must make in considering whether to initiate or continue a pursuit, and how the pursuit should be conducted.
After reviewing the City’s policy, and cases involving challenges to other cities’ policies, the Court concluded that the City’s policy contained specific guidance concerning the circumstances in which a pursuit is appropriate and the factors to consider in deciding whether to continue or terminate a pursuit. The Court noted that the policy directed officers that pursuit should only be initiated 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. The policy directed officers to consider the type of violation, accurate vehicle description and plate number, and pursuit speeds, pedestrian and traffic conditions in deciding whether to pursue. The Court noted that the policy also contained a separate section that addressed pursuit driving tactics, including forcible stop tactics such as the PIT maneuver. Because the policy provisions appropriately controlled and channeled a pursuing officer’s discretion in deciding whether to use forcible tactics to stop a pursuit and apprehend a suspect, the Court concluded the City’s pursuit policy that was in place at the time of the incident met the requirements of Section 17004.7(c).
The Court also rejected Ramirez’s argument that the City did not adequately promulgate its policy. Applying rules of statutory interpretation, the Court concluded that “promulgation” in Section 17004.7(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. If the agency imposes such a requirement, complete compliance with the requirement is not a prerequisite for immunity. Because there was no dispute that the City had a requirement that its officers execute a written certification, the Court rejected Ramirez’s argument that the City did not adequately promulgate its pursuit policy under Section 17004.7(b)(2).
In holding that promulgation in Section 17004.7(b)(2) means an agency must require its officers to execute a written certification to obtain immunity, the Court disagreed with the Fourth District Court of Appeal’s interpretation of the promulgation requirement set forth in Morgan v. Beaumont Police Department.[4] In Morgan, the Fourth District reviewed the Beaumont Police Department’s promulgation procedure, which provided notifications to officers of pursuit policy updates by email and directed them to access the policy electronically and then acknowledge receipt via email. The Fourth District concluded that Section 17004.7(b)(2) unambiguously requires proof that each officer provided a written certification as a condition of immunity. In disagreeing with the Morgan court, the Second District Court of Appeal explained that the Morgan court did not consider other possible constructions of the provision, including the construction that promulgation means an agency must implement its own certification requirement to obtain immunity.
HOW THIS AFFECTS YOUR AGENCY
The Second District’s decision makes clear that the promulgation requirement set forth in Section 17004.6(b)(2) means that a public agency, to obtain immunity, must require that its peace officers certify in writing that they have received, read, and understand the agency’s pursuit policy. However, if an agency imposes such a requirement, complete compliance with the requirement is not a prerequisite for immunity pursuant to Ramirez. The latter pronouncement contradicts the Fourth District’s holding in Morgan. Pursuant to Morgan, an agency must provide proof that each officer provided a written certification as a condition of immunity.
When two separate appellate districts conflict on a legal issue, a trial court may technically choose which decision to follow. In practice, however, trial courts in a particular district will generally follow the decisions issued by their own appellate district. Accordingly, despite the Second District’s holding in Ramirez, a trial court may choose to follow the Morgan decision’s requirements for immunity under Section 17004.6. Agencies, therefore, may wish to ensure they are in compliance with the Morgan decision to safeguard entitlement to immunity in pursuit situations. Nevertheless, the Ramirez decision represents a significant step forward for law enforcement.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400, or via email at jrt@jones-mayer.com.
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[1] 2017 Cal. App. LEXIS 730 (2d Dist. Aug. 23, 2017).
[2] Promulgation of the written policy under paragraph (1) 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.
[3] Section 17004.7 provides immunity to public agencies that adopt and implement appropriate vehicle pursuit policies. Section 17004.7(b) provides that:
“(1) [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.
(2) Promulgation of the written policy under paragraph (1) 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.”
[4] 246 Cal. App. 4th 144 (2016).