Checking in on Neighbor Was ‘Active Law Enforcement Service’

Friday, August 28, 2020

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California Supreme Court:

Checking In on Neighbor Was ‘Active Law Enforcement Service’

Majority Says Couple Acceding to Deputy’s Request to Make Sure Neighbor Who Had Placed 911 Call Was Safe Are Relegated to Workers’ Compensation Recovery for Injuries Assailant Inflicted

By a MetNews Staff Writer

A couple who, at the request of a sheriff’s deputy, went to check on a neighbor who had placed a 911 call and were severely injured by an intruder on the premises, are entitled to recompense but, having engaged in “active law enforcement service” at a peace officer’s request, are limited to workers’ compensation, the California Supreme Court held yesterday.

Justice Mariano-Florentino Cuéllar wrote the opinion for the majority. Justice Joshua P. Groban authored a dissent in which Justice Ming Chin joined.

Contesting their relegation to workers’ compensation benefits are Norma and James Gund. On March 13, 2011, Norma Gund received a call from Trinity County Sheriff’s Corporal Ronald Whitman who related that their neighbor, Kristine Constantino, had placed a 911 call and said, “Help me.”

He was en route to her residence, but it was in the town of Kettenpoma, a remote area about 100 miles from the sheriff’s station, and he asked that the Gunds check in on Constantino. Whitman did not relate that it was in a whispered voice that the woman spoke to the California Highway Patrol dispatcher who received the 911 call, or that efforts to contact her after she hung up were to no avail.

‘No Big Deal’

To the contrary, Whitman assured Norma Gund:

“There’s a big storm coming. That must be what this is all about. It’s probably no big deal.”

The Gunds obliged, going to the neighbor’s residence. The wife went in first and saw that the intruder, Tomas Gouverneur, had slain Constantino and her boy-friend, Christopher “Sky” Richardson, whose wrists were handcuffed and ankles bound with ropes.

TOMAS GOUVERNEUR

Slayer

Gouverneur used a stun gun on Norma Gund, slashed at her face with a hunting knife, and started to slit her throat—but the husband, who was outside in the truck, heard noises, came in, and interceded, disarming the attacker, himself incurring injuries in the struggle, being tased, punched, and cut with the knife.

Labor Code Section

Trinity Superior Court Judge Richard Scheuler granted summary judgment to the county and Whitman in the Gunds’s action against them. He acted based on Labor Code §3366(a) which provides:

“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 (other than an independent contractor or an employee of an independent contractor) 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 Third District Court of Appeal affirmed.

Cuéllar’s Opinion

Cuéllar wrote:

“We ordered review on the court’s own motion to decide the scope of workers’ compensation coverage available to the plaintiffs in this situation, as the availability of such coverage would constrain them in seeking other redress for their injuries. Specifically, we address whether plaintiffs 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.”

The jurist said it was undisputed that the Gunds acted “at the request of” a peace officer, and “engaged in assisting” the officer. The question, he explained, was whether they were involved in “active law enforcement service.”

Responding to Calls

He declared:

“[W]e conclude that the term ‘active law enforcement service’—as used in section 3366—falls short of encompassing every conceivable function a peace officer can perform. But neither is it quite so narrow that we are compelled to hold it only applies to the arrest and detention of criminals, or the direct suppression of crime. We conclude that ‘active law enforcement service’ includes a peace officer’s duties directly concerned with functions such as enforcing laws, investigating and preventing crime, and protecting the public. Whatever the outer limits of the term, ‘active law enforcement’ certainly includes the arrest and detention of criminals, as well as—given the range of reasons that ordinarily trigger emergency calls to police—responses to emergency calls for unspecified assistance, such as Kristine’s 911 call for help.”

Cuéllar went on to say:

“Responding to a 911 call for assistance of an unknown nature is what the Gunds did, so they are properly deemed employees under section 3366.”

Workers’ Compensation Advantages

While those who act as members of a posse or otherwise perform as volunteer law enforcement officers will receive less recompense for their injuries than in tort actions, the workers’ compensation remedy “makes it much simpler and quicker for injured civilians to get compensation,” he remarked.

The Gunds argued that §3366 relates to voluntarily rendered assistance where, in light of Whitman’s misrepresentations as to the lack of danger involved, they acted involuntarily. Cuéllar responded:

“[E]ven when an employer intentionally conceals and misrepresents hazards in order to induce an individual to accept employment, workers’ compensation is the individual’s exclusive remedy….Put differently, allowing allegations of misrepresentation to take claims like this outside the workers’ compensation system would disturb the carefully balanced scheme the Legislature designed.”

He added:

“A plaintiff may, however, allege a tort claim under circumstances not argued here. A plaintiff may pursue tort claims for intentional misconduct that has only a questionable relationship to the employment, an injury that did not occur while the employee was performing a service incidental to and a risk of the employment, or where the employer stepped out of its proper role….These types of injuries are beyond the compensation bargain.”

Groban’s Dissent

Groban said in his dissent:

“The majority’s view is premised on an assumption I cannot accept: An unarmed, untrained middle-aged couple, by stumbling upon an active murder scene, were in fact working as law enforcement officers. In reality, neither the Gunds nor Corporal Whitman reasonably believed that, by asking the Gunds to check on the neighbor to help with a weather-related event, Corporal Whitman was actually asking the Gunds to perform a law enforcement officers job of investigating a crime, arresting a criminal, or performing some other particularly hazardous task for the protection of the public.”

He continued:

“The Gunds’ understanding was objectively reasonable in light of Corporal Whitman’s opinion that the call ‘must be’ all about a big storm coming and was ‘probably no big deal.’ But in the majority’s view, Corporal Whitman’s assessment of the nature of the 911 call does not matter. Corporal Whitman’s failure to inform the Gunds that their neighbor had whispered on the 911 call does not matter. Corporal Whitman’s failure to inform the Gunds that the neighbor had desperately repeated ‘help’ over and over again before abruptly ending the call does not matter. Corporal Whitman’s failure to inform the Gunds that the county dispatcher’s return calls went unanswered does not matter. The Gunds’ prior experiences in helping with weather-related events at the neighbor’s house does not matter. Even lies do not matter.

“I disagree.”

The case is Gund v. County of Trinity, 2020 S.O.S. 4169.

Gouverneur, a musician, fled from the murder scene in his automobile after James Gund disarmed him. The Gunds phoned the Trinity County Sheriff’s Office from a store in town, and word was spread to other law enforcement agencies.

Gouverneur’s vehicle was spotted by Mendocino County sheriff’s deputies, and a high-speed chase ensued over a 40-mile stretch, culminating in Gouverneur crashing into a tree and dying on the spot.