VEHICLE PURSUIT POLICY MUST BE “PROMULGATED,” AND ANNUAL TRAINING PROVIDED, IN ORDER FOR IMMUNITY TO APPLY
On April 4, 2016, the Fourth District Court of Appeal held, inMorgan v. Beaumont Police Department, that law enforcement agencies will only get immunity from damages caused during a pursuit if they adopt a policy, promulgate it, and provide regular and periodic training on the policy.
Vehicle Code section 17004.7, subdivision (b)(2), defines the word “promulgate” as: “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.”
In addition, “Regular and periodic training under this section means annual training that shall include, at a minimum, coverage of each of the subjects and elements set forth in subdivision (c) and that shall comply, at a minimum, with the training guidelines established pursuant to Section 13519.8 of the Penal Code.”
Facts
A little before noon on March 17, 2011, Officer Brian Stehli, with the Beaumont Police Department (BPD), was monitoring traffic on a City street when he saw a silver pickup truck drive by with a large crack in its front windshield and a broken tail light. The officer signaled the driver to stop but, instead of stopping, the driver of the pickup, later identified as Thomas Durnin, accelerated. As the pickup came to an intersection, its driver did not stop at a stop sign. Officer Stehli in response activated his cruiser’s siren and the truck fled.
With Officer Stehli in pursuit, the pickup failed to stop at another intersection, then sped up and continued south on California Avenue towards Highway 79. Just before the California Avenue and Highway 79 intersection, the pickup went around a slow-moving vehicle, in the southbound lane of California Avenue, and then merged onto Highway 79 from a dirt area. During the pursuit, Officer Stehli and/or the suspect driver were traveling at speeds of up to about 90 miles per hour.
Durnin ran red lights, passed cars on the right shoulder and drove erratically. As Officer Stehli pursued the pickup on Soboba Road, he made a “brief visual” of the pickup as it traveled about a half-mile ahead of him. As the pursuit continued on Soboba Road, Officer Stehli saw the pickup pass through the Lake Park Drive intersection without stopping. Almost immediately thereafter, Officer Stehli lost sight of the pickup as it went up and then down a crest on Soboba Road.
“The record is less than clear regarding whether Officer Stehli terminated the pursuit mere seconds before or after the collision, or at the same time he saw a ‘cloud of dirt’ that he immediately recognized was the result of a collision. As discussed post, plaintiffs contend the evidence shows Officer Stehli terminated the pursuitafter or, at a minimum, at the same time he saw the ‘cloud of dirt’ arising from the collision. In any event, the record shows the pickup driven by Durnin crossed a double yellow line and struck Morgan’s vehicle traveling in the opposite direction. As noted, Morgan subsequently died from his injuries resulting from the collision.”
Plaintiffs and Appellants Rosemary Morgan and Michelle Luna are the widow and daughter, respectively, of decedent Mike Wayne Morgan. The Plaintiffs’ complaint alleged a wrongful death cause of action against defendants, City of Beaumont (City) and the Beaumont Police Department (BPD). The trial court granted defendants’ motion for summary judgment, concluding they were immune from liability pursuant to Vehicle Code Section 17004.7. In granting the motion, the trial court found that defendant BPD had a “policy and procedure in place” and, therefore, section 17004.7 applied.
On appeal, plaintiffs argued that the court erred in granting summary judgment because defendants failed to show by sufficient evidence that BPD, as a matter of law, promulgated a vehicle pursuit policy and provided the requisite training as required under Vehicle Code Section 17004.7. The Court of Appeal agreed with plaintiffs holding “that defendants failed to proffer sufficient evidence to establish as a matter of law that BPD promulgated its vehicle pursuit policy as required under Vehicle Code Section 17004.7. We therefore reverse the trial court’s decision.”
Discussion
“A trial court must grant a summary judgment motion when the evidence shows that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law.” As such, “a defendant moving for summary judgment, such as in the instant case, has the burden of producing evidence showing that one or more elements of the plaintiff’s cause of action cannot be established or, such as in the instant case, that there is a complete defense to that cause of action.”
“Our analysis of Vehicle Code Section 17004.7 is guided by settled principles of statutory interpretation. Our ‘fundamental task is ‘to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’ As always, we start with the language of the statute, ‘giv[ing] the words their usual and ordinary meaning, while construing them in light of the statute as a whole and the statute’s purpose.”
“Nonetheless, the ‘plain meaning’ rule [regarding a statute] does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible.”
“On appeal, plaintiffs do not dispute that BPD’s vehicular pursuit policy complies with the minimum standards set forth in Vehicle Code Section 17004.7 subdivision (c). Instead, plaintiffs contend defendants failed to establish as a matter of law that BPD both ‘adopt[ed] and promulgate[d]’ such a policy and ‘provide[d] regular and periodic training on an annual basis’ on its policy, as required in subdivisions (b)(1), (2) and (d) of Vehicle Code Section 17004.7.”
In citing to the case of Nguyen v. City of Westminster (2002) 103 Cal.App.4th 1161, the Court of Appeal stated that “Our conclusion that the promulgation requirement of Vehicle Code Section 17004.7 is unambiguous and is further supported by case law interpreting the former version of that statute and the Legislature’s amendment of the statute in response.”
At the time Nguyen was decided, there was “no requirement the public entity implement the policy through training or other means.” As a result, the Legislature passed SB 719, amending Vehicle Code Section 17004.7, “which made clear that in order for a public agency to be immune, “the agency must not only adopt a written policy butpromulgate it . . . .”
Prior to the Nguyen decision, “in order for an agency to have immunity from civil liability arising from injury, death or property damage occurring as a result of a police pursuit, an agency must adopt a policy on peace officer pursuits. The law [did] not however require the agency to implement the policy nor does it set any minimum standards for the policy. [SB 719] provides that an agency will only get immunity if they not only adopt a policy but alsopromulgate it and provide regular and periodic training on the policy. The policy must, at a minimum, comply with the guidelines set forth by POST.”
HOW THIS AFFECTS YOUR AGENCY
The Court of Appeal stated that “Our conclusion [is] that an agency’s vehicle pursuit policy is not ‘promulgated’ within the meaning of subdivision (b)(2) of section 17004.7 unless, at a minimum, ‘all’ of its peace officers ‘certify in writing that they have received, read and understand the policy’” (Emphasis added.)
The Court noted that its conclusion “is further supported by the POST commission. The POST commission website states under ‘Home/General Questions/Vehicle Pursuit Guidelines’ that in addition to providing annual training, an agency also ‘must provide all peace officers with a copy of the agency pursuit policy.’”
In the case of Morgan v. Beaumont Police Department, BPD argued that it sent copies of their policy to all officers by email who then acknowledged receipt of the email. The court found that was inadequate.
Mere “receipt” of the agency’s policy by email, instead of providing written certification from all of its officers, did not afford the agency immunity under Vehicle Code Section 17004.7.
The message of this case is clear – (1) a policy must be adopted by an agency; (2) it must be promulgated to all of its officers; (3) annual training must be provided; and (4) “all” officers must certify to those facts, in writing, in order for the agency to be immune from liability if injuries arise as a result of a pursuit by law enforcement officers.
As with all legal issues, it is important to seek out advice and guidance from your agency’s legal counsel. And, as always, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
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