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Souza v. City of Antioch4/30/1997
l.
Walker, J.
Corrigan, Acting P. J.
I concur:
Parrilli, J.
I concur in the result reached by the majority because it is consistent with binding Supreme Court precedent. Our Supreme Court has recently reaffirmed the line drawn in Johnson v. State of California (1968) 69 Cal. 2d 782, 73 Cal. Rptr. 240, 447 P.2d 352 (Johnson), between basic policy decisions, which are protected by discretionary immunity under Government Code, section 820.2, and ministerial decisions implementing policy, which are not protected. ( Caldwell v. Montoya (1995) 10 Cal. 4th 972, 980-982, 897 P.2d 1320.) In another recent case, involving liability for property damage caused by police efforts to capture a felony suspect who took refuge in a store and refused to surrender, the court noted, "we have not resolved whether the selection of the means employed to effectuate an arrest is such a 'basic policy decision' to which the immunity applies." ( Customer Co. v. City of Sacramento (1995) 10 Cal. 4th 368, 392, 895 P.2d 900 (Customer Co.) [rejecting plaintiff's inverse condemnation claim, and holding that proper avenue of relief was through Tort Claims Act].)
I agree with the majority that under the case law following Johnson, the actions of the police in attempting to resolve the familial hostage crisis in this case are most plausibly considered "ministerial" rather than "discretionary." I write separately only to urge the Supreme Court to resolve the open question it identified in Customer Co. by holding that when an arrest or rescue is attempted under exigent circumstances like those faced by the police here, the choice of strategy is a "basic policy decision" entitled to immunity. In this kind of situation, the distinction between "planning" and "operational" decisions is artificial and inappropriate. The plan must be conceived on the spot in response to the particular circumstances, and after a plan is chosen it is likely to be altered during implementation. The scene is infused with tension and demands improvisation. Police confronted with such choices should not be exposed to liability unless their actions are so unreasonable as to exceed the scope of the discretion vested in them to conduct their law enforcement duties. They should not be hampered in the performance of those duties by the prospect of litigation for their imperfect judgments. When officers respond to a crisis such as that created by Joel Souza, they should be able to proceed with certainty that the law will protect their good faith efforts to resolve the crisis, and not shift the blame to them when things go awry. Actions they take in the proper exercise of their duties should not be subject to the 20-20 vision of hindsight.
Parrilli, J.
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