Metropolitan News-Enterprise


Thursday, March 1, 2007


Page 3


S.C. to Decide Whether Pomona Police May Be Sued for Motorist’s Death


By a MetNews Staff Writer


The California Supreme Court yesterday agreed to decide whether a federal court verdict on an excessive-use-of-force claim under 42 U.S.C. Sec. 1983 bars a suit for negligence in state court.

The justices, at their weekly conference in San Francisco, unanimously granted review of a ruling by this district’s Court of Appeal that the family of George Hernandez may sue  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.

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.

The federal 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; jurors deadlocked as the liability of the fourth officer, but the court granted judgment in the officer’s favor as a matter of law.  The judge also dismissed the state claims without prejudice.

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.

In its first ruling on the city’s appeal, Div. Seven said there was no estoppel because the federal judgment did not resolve the issues raised in the state complaint. On request for rehearing, the appellate panel augmented the record to include the verdict and arguments of counsel in the federal trial, but concluded that “police officers cannot escape liability for negligence if they put themselves unnecessarily in harm’s way and must then shoot their way out of it.”

Because mere negligence will not support a Sec. 1983 claim based on Fourth Amendment rights, but will support a tort claim under California common law, the federal jury’s verdict does not establish that the officers were not negligent, Justice Earl Johnson Jr. wrote for the appellate panel.

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

In other conference action, the justices, by a vote of 6-0, left standing a Sixth District Court of Appeal ruling that a company that gives its employees Internet access through its internal computer system is a “provider…of an interactive computer service” entitled to immunity under the Communications Decency Act of 1996.

Justice Ming Chin recused himself in the case, in which the Court of Appeal rejected a suit against Agilent Technologies, Inc. over threats a former employee allegedly sent out through the company’s computer system.

Noting that “Agilent’s proxy servers are the primary means by which thousands of its employees in the United States access the Internet,” Justice Wendy Clark Duffy said the company met the broad statutory definition of a “provider.”

The Supreme Court also agreed to decide whether a defense attorney in a civil commitment proceeding under the Sexually Violent Predator Act may waive the client’s right to testify over the client’s objection. The Fourth District’s Div. Two ruled in People v. Allen, E039518, said that because the proceeding is civil in nature, the client does not have a constitutional right to testify against the judgment of counsel.


Copyright 2007, Metropolitan News Company