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Ninth Circuit:
$17 Million Wrongful-Death Judgment Against City Stands
Decision Affirms Determination That Off-Duty Police Officer Used Excessive, Unreasonable Force in Shooting Mentally Ill Man, His Parents; Rejects City’s Defense That Officer Acted Outside the Scope of His Employment
By a MetNews Staff Writer
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—AP Russell French speaks about the fatal shooting of his son, Kenneth French, during a news conference in Corona on Aug. 26, 2019. French’s son, Kevin, who was the decedent’s brother, reacts behind him. |
The Ninth U.S. Circuit Court of Appeals yesterday affirmed the denial of the City of Los Angeles’s motions for a new trial and for judgment as a matter of law in a case in which a jury assessed damages at $17,002,000 plus costs based on the fatal shooting by an off-duty police officer of a mentally ill man and the wounding of his parents.
Kenneth French, 32, was killed on June 14, 2019, after bumping into Salvador Alejandro Sanchez, then a Los Angeles police officer, at a Costco sausage-sampling event in Riverside County. Sanchez had his infant son in his arms.
Sanchez opened fire, insisting that he thought French had a gun.
Scope of Employment
The city’s chief defense was that Sanchez—“was off-duty, out of uniform, and shopping with his family when he opened fire on the Frenches in a crowded store far outside the Los Angeles city limits”—and therefore did not act in the course of his employment. However, a jury on Oct. 27, 2021, found to the contrary, and District Court Judge Jesus G. Bernal on May 10, 2022, in denying the city’s motions, said:
“A jury, viewing the evidence in the light most favorable to Plaintiffs and drawing all inferences in their favor, could reasonably find that Mr. Sanchez’s desire to protect his son overlapped with his duties as a peace officer. Because he acted, at least in part, as a police officer, his actions were not ‘purely’ motivated by self-interest.”
Bernal added that “California courts…have rejected drawing a hard line between on-duty and off-duty actions to determine employer liability” and “[t]here is no presumption against vicarious liability solely because an officer is off-duty.”
Ninth Circuit’s Affirmance
Agreeing, the Ninth Circuit said in yesterday’s memorandum opinion that substantial evidence supports the jury’s conclusion.
A three-judge panel noted that Sanchez “self-identified as a police officer on the scene, told first responders that he thought he was responding to an active shooter, testified that he relied upon his police training, used ammunition issued by the Los Angeles Police Department, and was allowed to carry a concealed weapon and high-capacity magazine off-duty without a permit by virtue of his employment with the Los Angeles Police Department.”
It declared:
“Construed in the light most favorable to the Frenches, this evidence and the remainder of the record does not permit only one reasonable conclusion contrary to the jury’s verdict that Sanchez acted within the scope of his employment.”
Testimony Sought
The city also argued that Bernal erred in not allowing it to put Sanchez on the witness stand, instead allowing only the showing of portions of a videotape of his deposition. More questions would have been posed had the questioning been allowed, it said.
Sanchez had made it known that whatever was asked he would invoke the Fifth Amendment. The panel observed that “[s]uch so-called ‘blanket’ invocations of the Fifth Amendment are disfavored in both criminal and civil contexts; the general rule is that a witness must invoke the privilege in response to each question asked,” adding:
“In a civil case, completely excusing a witness from testifying based on a blanket invocation of the privilege could interfere with the proper drawing of an adverse inference on a question-specific basis.”
However, it noted, Bernal had allowed the city to reveal to the jury the questions that had been asked at the deposition as to which Sanchez had invoked the right against self-incrimination, and as to each refusal he instructed the permissibility of drawing an adverse inference.
(The panel pointed out that although in criminal cases, an adverse inference may not be drawn from a party’s refusal to testify, the rule is to the contrary in civil cases.)
The city did not specify what additional questions it would have asked if live testimony had been allowed, the judges said.
“We need not decide whether the district court abused its discretion in excusing Sanchez from testifying under these circumstances, because even if the district court erred, the error ‘did not materially affect the verdict,’ ” they declared.
Comprising the panel were Judges Morgan Christen, Jennifer Sung, and Kim Wardlaw.
The case is French v. City of Los Angeles, 22-55571.
Attorney Fees Awarded
Bernal, in the order denying the city’s motions, also granted $1,922,931.00 in attorneys’ fees to the law office of Dale K. Galipo.
Sanchez was discharged by the Los Angeles Police Department and is facing trial on Oct. 30 on charges of voluntary manslaughter and two counts of assault with a Galipot deadly weapon—a semiautomatic firearm—resulting in great bodily injury.
The father, Russell French, shot in the stomach, suffered the loss of a kidney. The mother, Paola French, was shot in the back, as was the decedent.
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