Opinion Mondays: Is California's "Posse Law" Passé?
In a case involving an utterly bizarre fact pattern, as well as a legal battle stretching out over the bulk of a decade, the Supreme Court of California, in a 5-2 decision, held that a civil action for negligence and misrepresentation filed by two private citizens against a California county and a deputy sheriff is barred by the exclusive remedy provisions of the state’s workers’ compensation laws because of California’s “posse” law (Cal. Labor Code § 3366) [Gund v. County of Trinity, 2020 Cal. LEXIS 5542 (Aug. 27, 2020)]. Finding that the plaintiffs had been engaged in “active law enforcement service” at the time they were savagely attacked by a murderer, the majority cast aside allegations that the deputy had withheld important facts from plaintiffs when he asked for their assistance [see Larson’s Workers’ Compensation Law, § 28.03].
Is California’s “posse law” passé? As I allow below, this is an extremely difficult case. One can sometimes pound a square peg into a round hole, if one has a big enough hammer. Yet, the process does damage both to the peg and to the hole. The dissent makes several points that, in my opinion, are not well-handled by the majority, which holds here that the misrepresentations made by the deputy sheriff have no effect on the outcome.
As I posit at the end of this blog, while neither the majority nor minority opinions mention California’s line of tort cases in which an employee seeks tort damages from the employer for non-physical injuries (e.g., deceit, harassment, discrimination), they might have provided another legal theory upon which to have based the majority’s decision. The rule: where the gravamen of the claim is for physical injury — as I think it was in the case before the Court — the tort action is barred. Where the essence of the case is for a non-physical harm, the tort action is not so barred [see Larson, § 104.05]. In as much as the Court had to face the exclusive remedy issue here, that might have been a helpful point of decision.
Background
Cal. Labor Code § 3366 generally provides that any person engaged in the performance of “active law enforcement service” as part of the posse comitatus (translated: force of the county) 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 in accordance with the provisions of the state’s workers’ compensation laws.
The plaintiffs, a husband and wife, did not work for the county. They were telephoned by a Trinity County deputy who asked them — because of their proximity to the source of a 911 call — to “check on” a neighbor who had asked for help. According to the plaintiffs’ allegations, the deputy indicated the call was likely related to inclement weather and that it was “no big deal.” The deputy omitted potentially important information that suggested criminal activity had taken place at the neighbor’s residence. Plaintiffs unwittingly walked into a murder scene and were brutally attacked by the man who apparently had just murdered their neighbor and her boyfriend.
Trial Court Grants Summary Judgment for Defendants – Court of Appeal Affirms
The trial court granted the defendants’ motion for summary judgment on the basis of Cal. Labor Code § 3366. The Court of Appeal affirmed [Gund v. County of Trinity, 24 Cal. App. 5th 185, 234 Cal. Rptr. 3d 187, 83 Cal. Comp. Cases 1042 (2018)].
California Supreme Court’s Decision
On appeal to the California Supreme Court, Justice Cuellar, writing for the majority of the Court, indicated the issue was whether plaintiffs had engaged in active law enforcement under section 3366 after a peace officer asked them to check on a neighbor who dialed 911 for help and the officer allegedly misrepresented the situation.
Purpose of the “Posse” Law
The majority observed that it was undisputed that the Gunds assisted “at the request of” a peace officer. A more subtle issue, said the majority, was whether Corporal Whitman’s requested assistance was for a task of “active law enforcement service” [Majority opinion, p. 9]. Noting that the phrase was not defined in the statute, the majority indicated it embraced “a more capacious understanding of what ‘law enforcement service’ means” [Majority opinion, p. 13]. The majority also noted that until January 1, 2020, it was a misdemeanor for civilians to refuse many of these commands for assistance [In September 2019, Gov. Gavin Newsom signed Senate Bill 192 striking down the portion of the law that made it a crime to refuse a police officer’s request for help].
According to the majority, 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.
Majority’s Conclusion
Justice Cuellar stressed that, at its core, the request from Corporal Whitman was that the Gunds respond to a 911 call for help of an unspecified nature. Responding to such a call served a vital public protection purpose. As the Gunds asserted, 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. That Corporal Whitman or one of his law enforcement colleagues would ordinarily provide such a response was unremarkable and uncontroversial, wrote Justice Cuellar. Whatever the limits of “active law enforcement service” under section 3366, as the majority defined the phrase above, the requested service here fell within it.
The majority made one additional, significant point:
Simply alleging a request for assistance contained a misrepresentation, without more, does not preclude application of section 3366 and the exclusivity provision. Neither do misrepresentations alter our construction of “active law enforcement service,” which considers the type of task rather than an individual’s subjective understanding of risk [Opinion, p. 44].
The majority then concluded that because the help the Gunds provided was active law enforcement service, “and the workers’ compensation bargain offers protection with one hand even as it removes access to civil recourse with the other, the only remedy available to the Gunds is through workers’ compensation” [Opinion, p. 46]. This outcome, stressed the majority, made it easier for police to benefit from the public’s help, and ultimately, for the public to benefit from the police’s help.
Dissent
Justice Groban, joined by Justice Chin, dissented. Justice Groban essentially argued that, like the majority, he agreed that § 3366 applied when a civilian agreed to perform active law enforcement service at a peace officer’s request [emphasis added]. But the justice disagreed that Corporal Whitman asked the Gunds to perform an active law enforcement task. He stressed 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. It was objectively reasonable because Corporal Whitman told the Gunds that the 911 call “must be” weather related and was “probably no big deal.” He also failed to disclose important details from the 911 call that would have made them 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, wrote Justice Groban:
I believe that the words, facts, and context of the peace officer’s request matters. The majority does not see their significance here, but I do. I would therefore hold that the Gunds are not subject to section 3366 and would reverse the judgment of the Court of Appeal [Opinion and Dissent, p. 70].
Commentary
As I mentioned above, this is a tough case. I’ve read it three times and I’ve been back and forth in my agreement and disagreement with the majority’s ultimate decision. The dissent offers a powerful argument that cuts at the heart of the majority’s opinion: Corporal Whitman did not ask the Gunds to perform an active law enforcement task. According to his words, the had “engaged” them to check on a neighbor regarding a weather matter that likely was “no big deal.” The dissent points out that the Gunds understood the request exactly that way; initially Mr. Gund sat in the car while Mrs. Gund went into the neighbor’s house alone.
The majority makes a good point here, however. The minority’s position might lead to an endless examination of every word and gesture of the police officer requesting assistance. Faced with viewing the “active law enforcement task” in a narrow fashion or a broad one, the majority chose the latter. What’s the old saying? “Hard cases make bad law.” All too often, when a judge thinks with his/her heart — the injuries here were admittedly egregious — the judge sometimes gives in too easily. Here, the majority did not give in.
The minority allows that no one is suggesting that Corporal Whitman intentionally misrepresented the true nature of the situation or wished the Gunds any harm. That statement is important, and it gets to a point that was not argued by either party, nor was it addressed by either the majority or minority opinions. As Larson points out in our discussion of non-physical injuries (i.e., those caused by deceit, harassment, discrimination, and the like):
If the essence of the tort, in law, is non-physical, and if the injuries are of the usual non-physical sort, with physical injury being at most added to the list of injuries as a makeweight, the suit should not be barred. But if the essence of the action is recovery for physical injury or death, including in “physical” the kinds of mental or nervous injury that cause disability, the action should be barred even if it can be cast in the form of a normally non-physical tort [Larson, § 104.05].
Because the matter was disposed of before the trial court on a motion for summary judgment, there was no opportunity for the plaintiffs to put forth their entire argument, but I do think it’s fair to say that the gravamen of their case was for personal injury. That fact, when added to the § 3366 language, does seem to me to craft a strong argument that the tort action here should have been barred by exclusivity. As argued in the dissent, the issue depends upon how widely the posse law is read. At the beginning of this year, the criminal penalty for refusing to respond favorably to an officer’s request was jettisoned from California law. There are those who argue the entire posse provision should meet a similar fate.