On August 13, 2018, the Supreme Court of California held, in Ramirez v. City of Gardena, that a public agency’s pursuit policy must have California Vehicle Code section 17004.7’s written certification requirement, but 100 percent compliance with that requirement was not a prerequisite to receiving immunity for damages resulting from a vehicle pursuit.
The Court’s unanimous opinion is largely in accord with the positions presented in the amicus brief filed with the Supreme Court in this case by Jones & Mayer on behalf of Amicus Curiae, California Police Chiefs Association, California State Sheriffs’ Association, and California Peace Officers’ Association.
Background
The California Supreme Court took most of the following facts from the opinion of the Court of Appeal since neither plaintiff nor defendants petitioned the Court of Appeal for a rehearing.
Police officers employed by the City of Gardena (“City”) were pursuing a pickup truck on February 15, 2015. Mark Gamar was a passenger in the truck. Officer Michael Nguyen, one of the pursuing officers, bumped the left rear of the truck with the right front of his own vehicle to stop the truck using a maneuver called a “Pursuit Intervention Technique” (“PIT”). The truck spun into a streetlight pole, and Gamar died from injuries he sustained from the collision.
At the time of the incident, the City had a written policy governing vehicle pursuits. The City provided training to its police officers on its pursuit policy on at least an annual basis. That training included a requirement that officers must certify electronically that they had received, read, and understood the pursuit policy. A training log produced by the City showed 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. According to testimony submitted by the City’s custodian of records, 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.
Plaintiff Irma Ramirez, Gamar’s mother, filed a wrongful death suit against the City, claiming that Officer Nguyen acted negligently and committed battery in performing the PIT maneuver. The City moved for summary judgment, in part on the ground that it was immune from liability under Section 17004.7. The trial court granted the motion on this ground. Although the trial court concluded there were issues of fact relating to the reasonableness of Nguyen’s actions in conducting the PIT maneuver, the trial court concluded that the City was immune under Section 17004.7 because the City properly promulgated its pursuit policy in compliance with Section 17004.7 and provided regular and periodic training to its officers. The court also found that the policy met section 17004.7’s other requirements. Ramirez appealed.
Court of Appeal
Relying on the Fourth District Court of Appeal’s decision in Morgan v. Beaumont Police Dept.,[1] Ramirez argued on appeal that the City was not entitled to immunity because it failed to provide evidence that all of its officers had executed written certifications in compliance with Section 17004.7, subdivision (b)(2).
The Second District Court of Appeal disagreed, holding that, if a public agency imposed the certification requirement, the agency was not required to prove each and every officer complied with the requirement. In disagreeing with the Morgan court, the Court of Appeal explained that Morgan 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. Because the City’s pursuit policy imposed the certification requirement, the Court of Appeal affirmed the trial court’s ruling of summary judgment for the City.
Discussion
The Supreme Court of California granted Ramirez’s petition for review to address the following question: Is the immunity provided by Section 17004.7 available to a public agency only if all peace officers of the agency certify in writing that they have received, read, and understand the agency’s vehicle pursuit policy?
The Supreme Court began by discussing the scope of immunity and liability as relevant here. The Court observed that, under Cal. Gov. Code, section 815, subd. (a), “‘[e]xcept as otherwise provided by statute,’” a public entity enjoys general tort immunity. Vehicle Code section 17001 creates a statutory exception to public entities’ general tort immunity: “‘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.’” Finally, Section 17004.7 limits the liability that Section 17001 otherwise imposes by providing immunity to public agencies that adopt and implement appropriate vehicle pursuit policies.
The Court explained that Section 17004.7 “provides public agencies employing peace officers immunity from damages for collisions resulting from police chases if, but only if, the agency ‘adopts and promulgates a written policy on, and provides regular and periodic training on an annual basis for, vehicular pursuits . . . .’ ([Section] 17004.7, subd. (b)(1).) Promulgation of the written policy must include ‘a requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy.’ (Id., subd. (b)(2).)”
The Court considered its task on appeal to be resolving the interpretation of Section 17004.7(b)(2)’s “requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy.” Did this text mean it was sufficient if the policy contained the requirement? Or, did the public entity have to prove not only that it had imposed the requirement, but also that all of the entity’s peace officers had complied with it? The Fourth District in Morgan and plaintiff Ramirez argued for the second view – “promulgation” of the pursuit policy meant that each officer must certify in writing that they had received, read, and understood the agency’s vehicle pursuit policy.
The Supreme Court explained here that “the statutory language resolves the issue” because Section 17004.7(b)(2) did not state that all of an entity’s peace officers must have made the certification for the public agency to obtain immunity. It said instead that “[p]romulgation” of the policy must include “a requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy.” The Court concluded that the plain meaning was that the policy must include the requirement, not that every peace officer must meet the requirement.
The Supreme Court also found that the statute’s purpose and public policy led to the same conclusion. The Court noted that Ramirez’s interpretation would impose a heavy burden on public agencies, especially large ones. The Supreme Court quoted the Court of Appeal to observe that 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 Court’s interpretation comports with the concerns we discussed in our amicus brief that the construction espoused by Morgan and plaintiff Ramirez would improperly “deny immunity to an entity who had taken all appropriate steps to implement a safe pursuit policy and continually educate its officers on its policy if that entity had a single instance of missing paperwork.”
The Supreme Court explained further that when the Legislature amended Section 17004.7 in 2005, the goal was to improve public safety by encouraging public entities to promulgate a pursuit policy and provide training pursuant to that policy. Securing immunity was intended as the incentive for public entities to adopt the policy and provide the training.
We argued in our amicus brief that denying immunity absent 100% officer compliance with the written certification requirement would make it nearly impossible for an agency to ever qualify for that immunity, thereby frustrating the statutory scheme and underlying public policy of the statute. Here, the Supreme Court found that it would be “very difficult for a public entity like the City to achieve immunity, and almost impossible for a large entity employing thousands of peace officers.” The Court explained “that interpretation would greatly reduce the incentive for public entities, especially large ones, to promulgate the policy and provide the training, something we doubt the Legislature intended.”
The California Supreme Court thus agreed with the Court of Appeal that “a public agency’s pursuit policy must contain the written certification requirement, but the agency does not have to prove total compliance with that requirement as a condition of obtaining immunity under Section 17004.7. A requirement may exist even if not every peace officer complies with it.” The Court added that it did not need to specify here when a lack of compliance with the written certification requirement or meaningful implementation of the pursuit policy might indicate an agency’s failure to meet the statute’s requirements. The Court explained that this issue was beyond the scope of the issue presented for the Court’s review.
The Court accordingly affirmed the Court of Appeal’s decision here upholding immunity for the City, and also disapproved the Morgan decision to the extent that it was inconsistent with the Court’s opinion.
HOW THIS AFFECTS YOUR AGENCY
The Court’s opinion in this case corresponds to our position set forth in our amicus brief for this case. Specifically, the focus of Section 17004.7 was on the governmental entity, not the actions (or inactions) of peace officers. Incentivizing agencies with immunity was intended to foster agency development of pursuit policies and to encourage agencies to train officers to adhere to those policies. Through Section 17004.7, the Legislature merely sought to entice agencies to take action to curb vehicle pursuit risks by educating their officers, not to make it nearly impossible to meet the Section’s requirements by requiring total officer compliance.
This decision represents a significant victory for law enforcement. It implements a balanced approach to minimizing the safety risks inherent in vehicle pursuits, while still maintaining immunity from liability that might otherwise result from such pursuits absent compliance with the statutory scheme developed by the Legislature. As such, agencies should continue to establish, implement, review, and regularly train their officers on their pursuit policies, as required by Section 17004.7. Though the Court made clear that each and every officer’s written certification of compliance is not required to secure immunity, nonetheless agencies should note that the Court expressly did not address when a lack of compliance with the certification requirement would constitute an agency’s failure to satisfy the statute’s requirements. Accordingly, it is imperative to continue to strive to ensure complete compliance.
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] 246 Cal.App.4th 144 (4th Dist. 2016).