Metropolitan News-Enterprise


Wednesday, April 12, 2006


Page 1


C.A. Revives Suit in Fatal Shooting by Pomona Police

Defense Verdict in Federal Action No Bar to Negligence Suit in State Court, Panel Says


By KENNETH OFGANG, Staff Writer/Appellate Courts


A federal court verdict on an excessive-use-of-force claim under 42 U.S.C. Sec. 1983 does not bar a suit for negligence in state court, the Court of Appeal for this district ruled yesterday.

The justices reinstated an action by the family of George Hernandez against the City of Pomona and four of its officers. Hernandez, a 30-year-old father of seven, was killed in January 2001 after he led police on a 100-mph chase from Pomona to Ontario, crashed his car, and ran from the officers.

“We hold the doctrine of res judicata does not apply to the case before us,” Justice Earl Johnson Jr. wrote for the court. “The primary right at issue in the section 1983 action was Hernandez’s right under the Fourth Amendment to be free from unreasonable seizure of his person. The primary right in the negligence action is Hernandez’s right to be free from injury to his person. That some of the same facts are involved in both actions is not determinative; the significant factor is the nature of the harm.  The nature of the harm in the former action was the violation of a constitutionally protected right.  The nature of the harm in the latter action is the violation of a common law right.”

Attorneys for the family sued in federal court after the city rejected their $5 million tort claim. The complaint alleged that all four officers fired at Hernandez after he turned toward them and raised his hand in the air to indicate he was unarmed.

Bifurcated Claims

The court held a jury trial on the Sec. 1983 cause of action—in which the plaintiffs alleged that the use of excessive force violated Hernandez’s rights under the Fourth Amendment—and bifurcated the state causes of action. The jury returned a general verdict in favor of three of the officers and the city, but deadlocked on whether the fourth officer was liable.

The judge then granted the fourth officer’s motion for judgment under Rule 50 of the Federal Rules of Civil Procedure, concluding that there was no use of excessive force and that the officer was entitled to qualified immunity in any event. The court also dismissed the state claims without prejudice, declining to hear the merits on the basis of supplemental jurisdiction.

The plaintiffs then sued for negligence in state court. The defendants demurred on the grounds of res judicata and collateral estoppel, and Los Angeles Superior Court Judge Bruce Minto dismissed the case.

But Johnson, writing for the Court of Appeal, said there was no estoppel because the federal judgment did not resolve the issues raised in the state complaint.

General Verdict

The federal jury, Johnson explained, could have reached the general verdict in favor of the officers under Sec. 1983 either by finding that they did not use excessive force, or that they used excessive force but reasonably believed that they were acting within the law and thus did not violate a clearly established federal constitutional right.

The latter finding would entitle the officers to qualified immunity under federal law, but would not establish that the officers were not negligent under California law. And even if the amount of force used was within constitutional limits, as the court determined in response to the Rule 50 motion, that would not establish reasonableness as a matter of California tort law, the justice said.

As for the verdict in favor of the city, Johnson noted that the doctrine of respondeat superior would render Pomona liable for the negligence of the individual officers under state law, but not under Sec. 1983. Since municipal liability under Sec. 1983 requires a finding that the city carried out a policy or practice that infringed upon federally guaranteed rights, the justice explained, the jury could have found the city not liable even if the officers were at fault.

Justice Fred Woods concurred in the opinion. Presiding Justice Dennis Perluss concurred in the result, but on narrower grounds.

Attorneys on appeal were Danilo J. Becerra and Lizette V. Espinosa of Moreno, Becerra, Guerrero & Casillas for the plaintiffs and Roger A. Colvin of Alvarez-Glasman & Colvin for the defendant.

The case is Hernandez v. City of Pomona, B182437.


Copyright 2006, Metropolitan News Company