Metropolitan News-Enterprise


Friday, May 29, 2009


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State High Court Rejects Suit in Fatal Shooting by Pomona Police

Defense Verdict in Federal Rights Action Bars Negligence Suit in State Court, Justices Rule





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 against the same defendants, the California Supreme Court ruled yesterday.

The justices unanimously reversed a ruling by this district’s Court of Appeal, which had 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.

“The record here demonstrates that in plaintiffs’ federal action, the issue of whether the officers exercised reasonable care in using deadly force was raised, submitted for decision, and actually decided against plaintiffs in resolving their section 1983 claim,” Justice Ming Chin wrote for the court.

 The plaintiffs’ arguments that those findings did not determine whether the officers were negligent under California law “are unpersuasive,” Chin wrote, rejecting the Court of Appeal’s conclusion that the negligence claim was not precluded because it involved a different primary right than the constitutional claim.

Federal Claim

The Hernandez 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 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.

No Estoppel

In reversing, the Court of Appeal’s Div. Seven, in an opinion by since-retired Justice Earl Johnson Jr., said there was no estoppel because the federal judgment did not resolve all of the issues raised in the state complaint.

Johnson agreed with the city that the plaintiffs were estopped from recovering on the theory that the officers acted negligently in using deadly force. But this did not preclude their claim entirely, the justice reasoned, because the federal jury was not asked to determine whether the officers’ conduct prior to the shooting “including the high-speed pursuit, foot chase, and release of a pursuit dog created an unreasonable risk of harm to themselves and Hernandez.”  

Chin, however, said the trial judge was correct in dismissing.

The reasonableness required of an officer in determining the necessity of using deadly force under the U.S. Constitution is the same as that required under state common law, and the federal jury was correctly instructed on the issue, he declared. Because the jury found that the shooting was reasonable, Chin said, the officers’ conduct leading up to the shooting could not have been actionably negligent.

Chin’s opinion was joined by Chief Justice Ronald M. George and Justices Joyce L. Kennard, Carol Corrigan, and Marvin Baxter.

Justice Carlos Moreno, in a separate concurrence joined by Justice Kathryn M. Werdegar, noted that the plaintiffs had the opportunity to amend their complaint in the trial court to allege pre-shooting negligence, but declined to do so, and did not explain in the Supreme Court how they could do so.

“In my view, we need say no more to resolve this case,” the justice wrote. “We can and should wait for a case in which the plaintiff actually has alleged a cause of action for preshooting negligence to consider that cause of action.”

Primary Right

Corrigan, in a separate concurrence joined by Baxter, argued that the civil rights and negligence claims involved the same primary right, so the federal court’s rejection of the former precluded the latter.

“...I do not believe that defendants and state courts should be required to relitigate the facts and parse the federal record for precluded issues in every case where a federal court retains supplemental jurisdiction of state claims, then dismisses them after trying a claim under 42 United States Code section 1983,” the justice wrote.

The case was argued in the Supreme Court by Danilo J. Becerra of Montebello’s Moreno, Becerra, & Casillas for the plaintiffs; Roger A. Colvin of Alvarez-Glasman & Colvin, located in the City of Industry, for the defendants; and San Francisco Deputy City Attorney Peter J. Keith for the League of California Cities, the California State Association Counties, and the City and County of San Francisco as amici in support of the defendants.

The case is Hernandez v. City of Pomona, 09 S.O.S. 2956.


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