On August 27, 2020, in the case of Gund v. County of Trinity,[1] the California Supreme Court found that plaintiffs, who were injured by an attacker in the course of responding to a peace officer request to provide assistance to their neighbor who had called 911 requesting help, were limited to workers’ compensation benefits for those injuries based on the officer’s request for assistance. In reaching its conclusion, the Court determined that the plaintiffs were engaged in “active law enforcement service” under Labor Code section 3366.
Background
Peace officers sometimes request assistance from members of the public in the pursuit of some public safety purpose. Under Labor Code section 3366(a), when members of the public engage in “active law enforcement service” upon a peace officer’s request, those members of the public are treated as employees eligible for workers’ compensation benefits. Such individuals can thus receive compensation for their injuries without regard to fault. However, workers’ compensation then becomes such an individual’s exclusive remedy for those injuries under California law (Labor Code section 3602(a); Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.), and workers’ compensation benefits are narrower in scope than the range of damages available in tort claims.
In March 2011, the California Highway Patrol (“CHP”) received a phone call from a female caller named Kristine. Kristine whispered, “Help me,” and said she lived at the end of the Kettenpom airstrip. Kettenpom is in Trinity County, a mountainous region of 3,200 square miles. The CHP dispatcher relayed the content of Kristine’s call to the Trinity County Sheriff’s Department. The Sheriff’s Department is located almost 100 miles away from Kettenpom. The CHP dispatcher explained she was reluctant to call Kristine back in case Kristine was trying to avoid being overheard. Twice, a Trinity County dispatcher attempted to contact Kristine, but the calls went straight to voicemail. The county dispatcher relayed this information to Trinity County Sheriff’s Corporal Ronald Whitman.
Corporal Whitman knew that Norma and James Gund lived in the vicinity of the Kettenpom airstrip. While Corporal Whitman was headed towards Kristine’s home but still some distance away, he called Norma Gund and explained that her neighbor Kristine had called 911. Corporal Whitman asked Mrs. Gund if she would go check on Kristine, because the Gunds were much closer to Kristine’s home and Corporal Whitman was still hours away. After Mrs. Gund agreed, Corporal Whitman asked if Mr. Gund was home, and Mrs. Gund said no. Corporal Whitman instructed Mrs. Gund not to go to Kristine’s home by herself. Mrs. Gund asked what Kristine said on the call, and Corporal Whitman responded that Kristine said, “Help me.” Mrs. Gund then asked, “Are you sure? Is that all she said?” Corporal Whitman responded, “She said two words, ‘Help me.’” Mrs. Gund told Corporal Whitman that Mr. Gund had just arrived home, and Corporal Whitman said, “Good.” Corporal Whitman did not tell Mrs. Gund that Kristine had whispered on the phone, that the CHP dispatcher believed she had been trying to call secretly, or that the county dispatcher’s return calls to Kristine went straight to voicemail.
Mrs. Gund confirmed for Corporal Whitman that she’d been to Kristine’s property before, to help the previous owner with snow and fallen trees. Corporal Whitman mentioned the impending arrival of a major storm, which “must be what this is all about.” “It’s probably no big deal,” he added. Corporal Whitman then asked if Mrs. Gund had ever met Kristine’s boyfriend and if he seemed violent. Mrs. Gund confirmed that she had met Kristine’s boyfriend. In response to whether he ever seemed violent, Mrs. Gund indicated she “didn’t know. He seemed real mellow.” Corporal Whitman gave Mrs. Gund his cell phone number and instructed her to call him as soon as she and her husband had checked on Kristine. Believing the emergency to be weather related, the Gunds drove to Kristine’s home. They speculated that maybe a tree had fallen or that Kristine, a young city girl, was having trouble with her wood burning stove.
After arriving at Kristine’s home, Mr. Gund stayed in the truck, while Mrs. Gund went in. Immediately after entering the home, Mrs. Gund was attacked by the man who had just murdered Kristine and her boyfriend. Mr. Gund, hearing the commotion, entered the home and saw the man holding down his wife and cutting her throat with a knife. The man then attacked Mr. Gund by tasing him, punching him, and cutting his throat. During the attack, Mr. Gund saw on the floor a motionless body with a bag over the head. Mrs. Gund escaped to the truck and drove to a nearby store for help. Mr. Gund disarmed the attacker and fled on foot to the Gunds’ home. Mr. Gund used another vehicle to go to the store where Mrs. Gund was located.
The Gunds filed suit against Corporal Whitman and Trinity County (the “County”). Their amended complaint alleged causes of action for: liability for the act or omission of a public employee; vicarious liability for the act or omission of a public employee; misrepresentation by a public employee, with actual malice; and vicarious liability for misrepresentation by a public employee, with actual malice. The Gunds argued that Corporal Whitman sought to secure their assistance by falsely assuring them that Kristine’s call was probably weather related and knowingly withholding the information that Kristine whispered, that the CHP dispatcher thought Kristine was calling secretly, and that the county dispatcher’s return calls went straight to voicemail.
The County and Corporal Whitman moved for summary judgment, contending that workers’ compensation was the Gunds’ exclusive remedy because they sustained their injuries while engaged in active law enforcement service under Section 3366. The Gunds argued that Section 3366 did not apply because, given Corporal Whitman’s alleged misrepresentations, they did not understand themselves to be engaged in “active law enforcement service” when they complied with his request, nor would a reasonable person have understood this to qualify under that standard. The trial court granted the County and Corporal Whitman’s motion for summary judgment, finding that Section 3366 applied because a response to a 911 call under the circumstances constituted assisting a peace officer in active law enforcement.
After the Gunds appealed, the Court of Appeal affirmed. The Appellate Court reasoned that because Corporal Whitman’s direct response to Kristine’s 911 call would have been considered active law enforcement, the Gunds’ response on Corporal Whitman’s behalf should also be considered active law enforcement. The Court of Appeal concluded that responding to a 911 call for unspecified help “is clearly active law enforcement” and that Section 3366 applied.
Discussion
The Supreme Court of California granted review on its own motion in order to determine the scope of workers’ compensation coverage available to the Gunds, observing that the availability of such coverage would constrain the Gunds in seeking other redress for their injuries. This inquiry hinged on whether the Gunds engaged in “active law enforcement” under Section 3366, even assuming Corporal Whitman’s alleged misrepresentations. Justice Cuéllar authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Kruger, Liu, and Corrigan concurred.
The Court explained that workers’ compensation spreads the cost of injuries associated with the risks of employment while limiting the extent of recovery a covered worker could have gained through ordinary civil litigation.[2] Workers’ compensation benefits are available for an employee’s injury “arising out of and in the course of the employment” where “the injury is proximately caused by the employment.”[3] Civilians who volunteer to assist law enforcement only become “employee[s]” if they fall within the scope of Section 3366’s coverage.[4] In this context, under Section 3602(a), workers’ compensation is “the sole and exclusive remedy of the employee.”
Section 3366(a) provides, in part: “For the purposes of this division, each person engaged in the performance of active law enforcement service as part of the posse comitatus or power of the county, and each person . . . engaged in assisting any peace officer in active law enforcement service at the request of such peace officer, is deemed to be an employee of the public entity that he or she is serving or assisting in the enforcement of the law, and is entitled to receive compensation from the public entity in accordance with the provisions of this division.”
The Supreme Court stated that to determine whether a civilian is an “employee” here, “[f]irst, we consider whether a peace officer asked for assistance with a task that qualifies as active law enforcement service. Second, we ask whether the civilian was injured while engaged in that requested service.” The Court explained that this two-step framework incorporates the typical workers’ compensation requirement that an injury arise out of and in the course of the employment because the volunteer is only an “employee” if they are engaged in active law enforcement service at the request of the police.
The Court explained that it was undisputed that the Gunds assisted “at the request of” a peace officer, and, further, were “engaged in assisting” that officer when they sustained their injuries. (Section 3366(a).) What remained under the framework was to decide if Corporal Whitman’s requested assistance was for a task of “active law enforcement service.”
Section 3366: “Active Law Enforcement Service”
The Supreme Court first considered the statutory language and structure of Section 3366 “to determine and give effect to the underlying purpose of the law.” (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.) The Court observed that the phrase “active law enforcement service” was not defined by Section 3366, nor elsewhere in any other related statutory provision. The Gunds argued that the phrase only signified a narrow subset of policing tasks: the type of active investigation and suppression of crime entailing risk of death or serious injury while providing protection to the public. The defendants asserted that “active law enforcement service” identified the main duties of a police officer, which was a broader scope than that suggested by the Gunds.
The Court noted initially that judicial opinions and the public discourse routinely embrace “a more capacious understanding of ‘law enforcement,’” one that embraces the phrase “active law enforcement service” to refer to the full range of work law enforcement officers do, i.e., well beyond the investigation of crime, the suppression of criminal offenses, and the detention of criminals.
Considering the structure of Section 3366, the Court stated that the provision applies when an individual is injured while engaged in active law enforcement service, either on command or voluntarily at the request of a peace officer. The Court noted that Government Code section 26604 indicates that sheriffs “shall command the aid” of inhabitants as they think necessary to execute their duties. The Court explained that this type of authority for calling forth citizens to aid in law enforcement is called the posse comitatus power, a power that has a history since before the nation’s founding. Historically, many of these services for which a peace officer could command individuals’ assistance were ones for which an individual inherently exposed herself to risks in order to protect the public, such as where a sheriff summoned the posse to pursue an escaped outlaw or confront a violent gang. Until January 2020, it was a misdemeanor under Penal Code former section 150 for civilians to refuse many of these commands for assistance. Former Section 150 established that a peace officer could command (with threat of criminal sanction for failure to join the posse comitatus) assistance in making an arrest, recapturing an escapee, preventing a breach of the peace, or preventing the commission of any other criminal offense.
Looking at the language of Section 3366 itself, the Court determined that the term “active law enforcement service” as used in Section 3366 fell short of encompassing every conceivable function a peace officer could perform, but neither was it quite so narrow that it only applied to the arrest and detention of criminals, or the direct suppression of crime. The Court maintained that former Section 150 and Section 3366’s language were most reasonably understood to suggest that the concept of active law enforcement service is “more capacious than simply criminal investigation and prevention of specific crimes.”
The Court explained that when considering how workers’ compensation laws usually operate, Section 3366 was best understood as an exception to an exclusion from coverage.[5] Such exceptions to exclusions were to be read broadly, consistent with the directive to construe workers’ compensation provisions with the purpose of extending coverage.[6] Moreover, the Court explained that providing coverage through a workers’ compensation model meant that, although the extent of compensation may be limited, civilians can get that compensation more simply, quickly, and in a consistently applied manner without fighting over the specifics of an officer’s request for help or whether the request amounted to a negligent misrepresentation. (Section 3600(a)(3).) Through this system, determinations of coverage turn on whether an individual’s injuries arose out of and in the course of the employment, rather than on the subjective awareness of particular individuals. (Section 3600(a).) The Court stated that an overly narrow interpretation of active law enforcement service, or one that turned on subjective factors, would leave without recourse many individuals injured while obliging a peace officer’s request for assistance, undermining its civilian-protective purpose.
After reviewing Section 3366’s legislative history, the Supreme Court discerned three goals that the legislation was intended to serve: (1) creating an incentive for individuals to provide requested law enforcement service; (2) compensating, without concern for fault, someone who is injured while assisting a peace officer with law enforcement duties; and (3) limiting the state’s financial exposure. The Court found that these goals were best served by a more capacious understanding of “active law enforcement service.” The Court maintained that the simpler, quicker availability of these benefits could incentivize individuals to oblige a peace officer’s request for help, because they would ostensibly be less concerned with the financial consequences of potential injury or death. The Supreme Court also found that previous opinions interpreting Section 3366, and related provisions of the Labor Code[7] supported a more expansive interpretation of active law enforcement service.
Based on these factors, the Supreme Court concluded that the phrase “active law enforcement service,” encompassed the duties of peace officers directly concerned with enforcing the laws, investigating and preventing criminal activity, and protecting the public. The statutory text, legislative history, and their associated court cases supported the interpretation that “active law enforcement service” was best understood as capacious (though not entirely open ended) to include these core public protection, enforcement, and crime-fighting functions. Moreover, “active law enforcement” assuredly included responses to 911 emergency calls for assistance of an unknown nature — which possibly include responding to criminal activity.
The Supreme Court explained that the Gunds responded to a 911 call for assistance of an unknown nature, so they were properly deemed employees under Section 3366. There was no dispute that the Gunds acted at Corporal Whitman’s request. Corporal Whitman’s request was for the Gunds to respond to a 911 call for help of an unspecified nature. The Court noted that responding to a 911 call for unspecified help serves a vital public protection purpose. Corporal Whitman explained that Kristine called 911 seeking help. Because he was far away, Corporal Whitman sought the Gunds’ help to check on Kristine at her home. The Court noted that Corporal Whitman or one of his law enforcement colleagues would ordinarily provide such a response. Accordingly, the Court concluded that the requested service here fell squarely within the purview of the Court’s interpretation of “active law enforcement service” under Section 3366.
The Court added that the specific details of the exchange between Corporal Whitman and Mrs. Gund did not alter the core nature of his request that the Gunds respond to a 911 call for unspecified help. After requesting Mrs. Gund’s assistance, Corporal Whitman advised her not to go alone to Kristine’s home, which prompted her to ask what Kristine said in the 911 call. Corporal Whitman relayed that Kristine said, “Help me.” Mrs. Gund asked, “Are you sure? Is that all she said?” Corporal Whitman confirmed, “[S]he said two words, ‘Help me.’“ Corporal Whitman made clear he did not know the reason for Kristine’s call for help. While Corporal Whitman suggested the matter might be regarding the impending big storm, he followed by asking Mrs. Gund if she knew Kristine’s boyfriend and if he ever seemed violent. Mrs. Gund replied that she “didn’t know,” but offered that “[h]e seemed real mellow.” Despite Corporal Whitman’s assessment that there was likely a weather emergency and that it was “probably no big deal,” the Court maintained that his general request was still one for a response to a 911 call for help of an uncertain nature — a typical law enforcement task often associated with investigation of possible criminal activity, response to such activity, or protection of the public. The Court noted that there was no question that the Gunds were subsequently injured while engaged in assisting with this law enforcement service.
The Court also explained that the Gunds’ allegation that a request for assistance contained a misrepresentation, without more, did not preclude application of Section 3366 and the exclusivity provision of Labor Code section 3602(a). The Court stated that misrepresentations did not change the Court’s construction of “active law enforcement service,” which considered the type of task rather than an individual’s subjective understanding of risk.
The Supreme Court thus concluded that Section 3366 applied here, and that workers’ compensation benefits were the Gunds’ exclusive state law remedy pursuant to Labor Code section 3602(a). The Court accordingly affirmed.
Justice Groban dissented, joined by Justice Chin. The Dissent agreed that Section 3366 applied when a civilian agrees to perform active law enforcement service at a peace officer’s request but disagreed that Corporal Whitman asked the Gunds to perform an active law enforcement task. The Dissent maintained that it was objectively reasonable for the Gunds to believe that Corporal Whitman asked them to render neighborly assistance with a relatively risk-free weather-related problem, because Corporal Whitman told the Gunds that the 911 call “must be” weather related and was “probably no big deal.” Moreover, the Dissent’s view was that Corporal Whitman omitted important details from the 911 call that would have made the Gunds aware of the potential danger they faced and that they were being asked to assume the particularly hazardous functions and risks of a law enforcement officer. More broadly, the Dissent stated that the words, facts, and context of the peace officer’s request matters. The Dissent would therefore hold that the Gunds were not subject to Section 3366 and would reverse.
HOW THIS AFFECTS YOUR AGENCY
The Court acknowledged that “the Gunds were selfless neighbors and, when carrying out Corporal Whitman’s request, model citizens. With little information, they agreed to help their neighbor in a time of need. And they suffered mightily for providing that help.” Agencies should note the California Supreme Court’s advisement that “[o]fficers rightly concerned about public protection would do well to help volunteers understand the risks they may be assuming to assist in ‘active law enforcement service.’”
It is important to note that the Gund decision applies only to potential liability under California law. While generally nothing in the Due Process Clause requires the state to protect the life, liberty or property of a citizen against invasion by private actors, liability can result from a “special relationship” created by a law enforcement officer under federal law. (See DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189 (1989)). Alternatively, and applicable to the facts of the Gund case, a state actor can be found liable under federal law under the “state-created danger theory,” such as where a law enforcement officer places a person in a situation that is more dangerous than the situation in which they found her. (See e.g. Maxwell v. County of San Diego, 708 F.3d 1075, 1082 (9th Cir. 2013)). These theories of federal civil liability would not be precluded by the Gund decision. It is important to keep these distinctions in mind when performing your duties as a law enforcement officer.
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.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
[1] 2020 Cal. LEXIS 5542 (Aug. 27, 2020).
[2] Labor Code section 3600(a).
[3] Section 3600(a), (a)(3).
[4] Section 3366(a).
[5] See Sections 3352(a)(9) [volunteers are not employees] and 3366 [individuals engaging in active law enforcement service at the request of a peace officer are employees].
[6] See Minish v. Hanuman Fellowship (6th Dist. 2013) 214 Cal.App.4th 437, 466, fn. 16 [citing Machado v. Hulsman (3rd Dist. 1981) 119 Cal.App.3d 453, 455-456]; Section 3202 [workers’ compensation provisions shall be liberally construed with the purpose of extending benefits].
[7] See McCorkle v. City of Los Angeles, 70 Cal.2d 252, 263, fn. 11 (1969); Page v. City of Montebello, 112 Cal.App.3d 658 (2nd Dist. 1980); Biggers v. Workers’ Comp. Appeals Bd., 69 Cal.App.4th 431, 440-441 (3rd Dist. 1999) (interpreting Labor Code section 4850).