Cornell v. City and County of San Francisco

Filed 11/17/17 (unmodified opinion attached); Reposted 11/21/17 to retain format of filed opinion

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

BRET CORNELL,

Plaintiff and Respondent,

A141016 & A142147

v.

CITY AND COUNTY OF SAN (City & County of San Francisco

FRANCISCO, et al., Super. Ct. No. CGC11509240)

Defendants and Appellants.

THE COURT:

It is ordered that the opinion filed herein on November 16, 2017, be modified as

follows, with the modifications to be carried out in the following sequence:

1. On page 33, move footnote 27 from the end of page 33 after “(Id. at p. 953.)”

to page 35 after the sentence ending in “in short, jail overdetention” so that the

text reads as follows:

Thus, the nub of his Section 52.1 theory was not unlawful arrest, but rather

his continued incarceration despite a judicial release order—in short, jail

overdetention.27

2. On page 11, delete the reference to footnote 7 that appears in the following

sentence:

With liability for false arrest and negligence established in Phase I, the jury

returned a Phase II special verdict finding liability on the tortious

interference and Section 52.1 claims,7 awarding total damages of $575,231,

including $234,007 in past economic damages, $266,224 in future

economic damages, and $75,000 in past non-economic damages, with

judgment entered accordingly.8

After deleting footnote 7, all subsequent footnotes shall be renumbered.

1

There is no change in the judgment.

Dated: _________________ _____________________________, P.J.

2

Filed 11/16/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

BRET CORNELL,

Plaintiff and Respondent,

A141016 & A142147

v.

CITY AND COUNTY OF SAN (City & County of San Francisco

FRANCISCO, et al., Super. Ct. No. CGC11509240)

Defendants and Appellants.

Police officer trainee Bret Cornell, while off-duty and in street clothes, went for a

run one morning in Golden Gate Park, stopping for a brief rest on a knoll called Hippie

Hill. Two uniformed patrol officers in the area spotted him, thought he looked

“worried,” and grew suspicious because the bushes on Hippie Hill are known for illicit

drug activity. As the patrolmen began to approach Cornell, but before they reached him

or said anything to him, he resumed his run. The officers gave chase, joined in pursuit by

two other officers who responded to a call for backup. One of the officers, with his gun

drawn, eventually caught up to Cornell on a trail in some nearby woods.

Cornell claims he had no idea he was being chased or that the officers wished to

speak with him. On the trail, he says he heard a shout from behind, “I will shoot you,”

and looked over his shoulder to see a dark figure pointing a gun at him. He darted away,

ultimately finding what he thought was refuge with a police officer awaiting his arrival

some distance away at the top of a stairway in AIDS Memorial Grove. But to his surprise

when he arrived there, that officer ordered him to the ground. He was arrested at gun-

point and searched, taken in handcuffs to a stationhouse for interrogation, and eventually

to a hospital for a drug test, which was negative.

1

In the meantime, a team of officers went back to Golden Gate Park, spoke to

people who had seen Cornell that morning, and conducted a search of the areas where he

was known to have been, and of his parked truck. No evidence of involvement with

drugs turned up, and after nearly six hours in custody, Cornell was released. As he was

leaving the stationhouse, he was given a criminal citation for evading arrest in violation

of Penal Code section 148. Other than cursory questioning by the officers who issued the

citation, no one in a position of higher authority ever interviewed him or asked for his

side of the story. Cornell was never prosecuted, but he lost his job as a result of the arrest

and citation.

To recover for the damage done to him, Cornell sued the four arresting officers,

the Chief of Police, and the City and County of San Francisco. Following phase one of a

bifurcated jury trial on special verdict forms, the trial court, relying on findings of fact by

the jury in the initial phase, determined that Cornell was arrested without probable cause,

thereby establishing liability for false arrest, and prompting the defense to stipulate to

liability for negligence. In phase two, the jury returned a verdict for Cornell on two

remaining claims, tortious interference with economic advantage, and violation of Civil

Code section 52.1 (Section 52.1), awarding total damages of $575,231. Following trial,

the court added $2,027,612.75 in attorney’s fees and costs on the Section 52.1 claim.

These consolidated appeals are from the ensuing judgment and the award of

attorney’s fees and costs. The appellants argue 1) as a matter of law, the jury’s phase one

findings do not support the trial court’s determination that probable cause was lacking,

2) the trial court should have declared a mistrial when the jury deadlocked on one of 18

questions put to it in the phase one special verdict form, 3) the trial court failed to address

their argument that, under Penal Code section 847, subdivision (b), they are immune from

claims for false arrest, and 4) even if the verdict on the tort claims is upheld, the Section

52.1 verdict and accompanying award of fees and costs must be reversed because there

was insufficient evidence to submit that claim to the jury.

Seeing no error, we affirm.

2

I. BACKGROUND

A. The Evidence at Trial

In July 2010, Bret Cornell, a recent graduate of the police academy employed by

the San Francisco Police Department as a field officer trainee, went for a morning jog in

Golden Gate Park at around 7:00 a.m., after finishing a night shift. He was dressed in

gray canvas pants cut off at mid-ankle, a plaid fleece jacket over a dark t-shirt, and

running shoes. After running a considerable distance, at around 8:00 a.m., he ran across

Sharon Meadow and stopped to rest at the top of Hippie Hill, just as a police cruiser

drove through the trees up to the crest of the hill along a pedestrian pathway. He looked

at the car, and not wanting to interfere with whatever the officers were doing, walked

down to the bottom of the hill.1

The two uniformed officers in the cruiser, David Brandt and Richard “Brett”

Bodisco, considered Hippie Hill to be a high crime area. Both officers had made

numerous narcotics arrests there, mostly involving drug transactions in the bushes, and

there had been a homicide in the park a few days earlier. According to Officers Brandt

and Bodisco, they drove up the pathway to gauge the reaction of people on the other side

of the crest who could not see them coming. Cornell, a stranger to the officers, glanced at

their car when they came into view, and then looked away. Cornell was by himself, not

talking to anyone, had nothing in his hands, and was not doing anything specific to

arouse suspicion. Officer Brandt described Cornell as having a “clean-cut” look, which

he said was consistent with someone who was a recent parolee.2 Because Cornell

1

Cornell testified that when he saw the officers’ car, he thought it “odd” they were

driving on a pedestrian path, “figured . . . they were doing some kind of official

operation,” and wanted to avoid them because “I didn’t need to get myself involved in

any official operations” while off-duty. He explained that “in field training we are not

allowed to have any off-duty contact. We are not supposed to be getting involved in

official police matters if we can avoid it.”

2

On cross-examination, Officer Brandt admitted Cornell’s appearance was also

consistent with that of a recent graduate of the police academy.

3

appeared to be “worried” in their presence, Officers Brandt and Bodisco turned their car

toward him and decided to initiate a consensual encounter. They did not activate their

lights, or say anything to him over their loudspeaker.

As the officers turned toward Cornell, and as he walked away from them, headed

downhill, he looked back briefly in their direction and then began running. With their

suspicions aroused, the officers decided to chase Cornell and detain him. Officer

Bodisco jumped out of the car and made a radio call for backup to assist in setting up a

perimeter to cut Cornell off from any escape. The call, which drew the assistance of two

more uniformed officers, Jesse Farrell and Sergeant Wallace Gin, included a description

of Cornell and the direction he was headed, but no other details. When Officer Bodisco’s

call for backup went out, the police dispatcher asked “What’s the want?” Officer

Bodisco responded, simply, “[R]unning.” According to Officer Brandt, the call gave no

specifics because at that point “we didn’t have anything specific.” Surveying the area

from the top of the hill to see where Cornell went, Officer Bodisco testified he saw

Cornell go off path through some bushes, reappearing below the hill without his plaid

jacket and wearing only a dark shirt, which the officers took to be an attempt to throw

them off his track.

When Cornell left Hippie Hill, he was unaware the officers wanted him to stop.

His explanation for discarding his fleece jacket was that, after an hour’s run, he was

feeling hot. Having unsuccessfully tried to tie his fleece jacket around his waist while

running at an earlier point on his route, he folded it and placed it on a tree stump to

retrieve later. He said he had done that before and had no problem with anyone taking it,

and even if someone did take it, the garment was inexpensive and easily replaceable.

Once the officers caught sight of Cornell from their vantage point on Hippie Hill, Officer

Bodisco set out after him on foot. Officer Brandt, still in the cruiser, drove down and

around the hill, past some tennis courts, and along nearby Bowling Green Drive. As he

drove, Officer Brandt stopped to ask two people along the way if they had seen someone

4

matching Cornell’s description; one person claimed to have seen someone running near

the tennis courts, and another said he had heard some rustling in bushes up a winding dirt

trail nearby.

Continuing in the direction these park users pointed out, Officer Brandt’s search

took him to the bottom of a trail known as the High Path, a dirt pathway lined on both

sides by trees and brush, leading up a hill beyond Bowling Green Drive at the entrance to

the AIDS Memorial Grove. Officer Farrell arrived and joined Officer Brandt at the

bottom of the High Path, and the two of them began proceeding up the trail, with Officer

Brandt in the lead. Officer Brandt described the trail as dark and having a “cave[-like]

appearance.” He unholstered his gun at this point and held it in a “low ready” position,

not because of any specific threat, but because of “fear of the unknown.” Officer Farrell,

for his part, perceiving no threat, left his gun holstered.

Officer Brandt caught sight of Cornell walking up ahead and eventually came

close enough to confront him. Officer Farrell was directly behind Officer Brandt, could

see that Cornell appeared to be “clean cut,” was not armed, had nothing in his hands, and

was doing nothing threatening. Officer Brandt shouted something at Cornell. Both

officers recall Officer Brandt unmistakably ordering Cornell to stop at that point,3

causing Cornell to pause, half turn in their direction, look at them squarely, and then dash

away at full speed, taking a route downhill through the trees in a clear effort to evade

capture.

Cornell—who testified he still had no idea he was being pursued by police officers

during the encounter on the High Path—said he heard a “disturbance” behind him and

then heard the words “I will shoot you,” which prompted him to glance over his shoulder

and see a dark figure pointing a gun. He said he took off sprinting in desperate flight

3

What exactly Officer Brandt shouted was disputed (Officer Brandt—“stop[,]

police”; Farrell—“some sort of command,” cannot recall exact words; Cornell—“I will

shoot you,” and did not think whoever said it was a police officer because “I will shoot

you” is not an appropriate police command), but there is no dispute he yelled at least the

words “I will shoot you.”

5

from an unknown, armed attacker, and then tripped and fell down a steeply pitched slope

through some trees, tumbling into the AIDS Memorial Grove. Standing at the top of a

stairway across the meadow from where Cornell landed was Sergeant Gin. Cornell began

to run toward the stairway, thinking he had found protection from the unknown assailant

who had just accosted him on the High Path. To Cornell’s surprise when he reached the

bottom of the stairway, Sergeant Gin ordered him to stop and put his hands up.

At this point, Cornell surrendered without any protest or struggle. He raised his

hands as directed, but Sergeant Gin testified that as Cornell began walking up the stairs

he lowered his right hand to shoulder height, at which point Sergeant Gin drew his gun

and ordered him to the ground. Cornell again complied. As he lay prone on the steps,

Officers Bodisco, Brandt and Farrell arrived, and Officer Bodisco handcuffed him, with

the cuffs binding his hands behind his back. Cornell remained cooperative and compliant

throughout the handcuffing process.

Upon being handcuffed, Cornell was not advised he was under arrest or the basis

of the arrest. None of the officers dispute, however, that he was under arrest. Having

made the arrest, the officers conducted a full search incident-to-arrest. The search turned

up nothing except Cornell’s police identification and a standard-issue set of handcuffs in

his back pocket. It was not until this point—some seven minutes after the initial

encounter on Hippie Hill—that Cornell told the arresting officers he was a police officer

and that he was just out for a run. When asked where his gun was, Cornell said it was in

his truck, which was parked near Stowe Lake. Sergeant Gin decided at this point to take

Cornell to Park Station for further interrogation. Cornell was then escorted up the steps

and loaded into the back of a transport wagon, still bound in handcuffs behind his back.

As Cornell was being driven to Park Station, he began to feel light-headed, had

trouble breathing, and he requested a double set of handcuffs to relieve discomfort. He

repeatedly asked the driver for assistance, but was ignored. After the transport wagon

left, headed for Park Station, several officers conducted a search in Golden Gate Park,

6

looking for incriminating evidence. They found Cornell’s plaid jacket discarded in the

bushes, but there was nothing in it. They also located Cornell’s truck, which was parked

on Conservatory Drive, some distance from Stowe Lake where Cornell said he parked it;

his gun was inside, where he had indicated it could be found.

Upon arrival at Park Station, Cornell still had not been told why he was under

arrest. Officers Bodisco and Brandt surreptitiously recorded an interview of him and

during the questioning Officer Brandt told Cornell “[y]ou’re going to end up hanging

yourself pretty hard by lying. I can tell you that right now.” Cornell’s repeated question,

“What’s the charge?,” went unanswered. Responding to Cornell’s insistence that he had

been unaware he was being pursued by police and that no officer ever issued a command

to stop running, Officer Brandt accused him of being a “professional”—meaning

someone who has an “extensive history of criminal misconduct” who seeks to “work the

system for their benefit”—and brushed off Cornell’s denial of wrongdoing with the

comment, “you can talk to them downtown.”

While held in custody at Park Station, Cornell was handcuffed to a bench in full

view of many officers, the “entire watch” as he put it, and he overheard several of them

chuckling about him being a field officer trainee, which elicited comments such as “not

anymore” and “another one bites the dust.” Cornell continued to report being in physical

distress while at Park Station, so paramedics were called, and he was taken to a hospital.

In the ambulance, while the paramedics were taking Cornell to the hospital, Officer

Brandt arranged to place a hidden audio recording device near him, “because [he] might

say something stupid.” The recording captured nothing incriminating. At the hospital, a

sample of Cornell’s blood was taken and tested for the presence of narcotics. The blood

draw was negative.

Upon receiving medical clearance at the hospital, Cornell was returned to Park

Station, where he was eventually released at 1:50 p.m., after nearly six hours in custody.

While processing him for release, Officer Brandt said to Cornell “you know the drill” and

7

handed him a misdemeanor citation accusing him of violating Penal Code section 148,

subdivision (a), for resisting or delaying an officer in the course of his duties. The

citation, signed by Officer Bodisco, and approved by Sergeant Gin, specified Hippie Hill

as the location of the offense. No criminal charges were ever brought, but two days later,

pursuant to a policy requiring termination for misconduct of any officer trainee—trainees

are probationary employees—the San Francisco Police Department summarily released

Cornell from its employ, ending his career as a San Francisco police officer and

effectively disqualifying him from obtaining a law enforcement position with other

departments or agencies.

B. Claims and Trial Proceedings

Cornell brought this action against Officers Brandt, Bodisco and Farrell, Sergeant

Gin, San Francisco Police Chief George Gascon, and the City and County of San

Francisco (the City). In his complaint, as amended, he pleaded claims for violation of

Section 52.1, negligence, assault and battery, false arrest and imprisonment, and tortious

interference with contract and/or economic advantage.4 The remaining defendants at

trial—and the appellants here—were Officer Brandt, Officer Bodisco, Officer Farrell,

Sergeant Gin, and the City.

The case was tried to a jury over the course of 23 trial days in October and

November 2013. At the close of the evidence, jury deliberations were bifurcated into two

phases, with the first phase addressing the claims of assault and false arrest. A special

verdict form for Phase I presented a series of 18 questions, beginning with a question

asking the jury to decide whether Cornell had proved his assault claim, followed by a

4

Prior to trial, the court granted summary judgment to Chief Gascon because there

was no evidence of his personal involvement in the alleged acts giving rise to liability. It

initially granted summary adjudication to all defendants on Cornell’s Section 52.1 claim,

but due to an intervening change in the applicable law, reconsidered that ruling and

granted Cornell leave to amend, resulting in a second amended complaint upon which the

case was tried.

8

series of 17 factual questions pertinent to the legal issue of probable cause to arrest.5 The

court adopted this bifurcated mode of submitting the case to the jury based on the

expectation that the Phase I findings would dictate what, if anything, remained to be

decided in Phase II.

After a day and a half of Phase I deliberations, the jury reported being “hopelessly

stuck” on two of the questions submitted to it. The court admonished the jury to keep

trying. Late that afternoon, a Friday, the jury again reported it was still stuck on two

questions, this time adding that there was “no other testimony or evidence that will

change any of our minds.” With the jury at an impasse, the court recessed for the

weekend, after first excusing a juror who had a schedule conflict and substituting an

5

The specific questions, crafted jointly by the parties with input from the court,

were as follows: (1) Do you find by a preponderance of the evidence that a defendant

assaulted plaintiff? (2) Did either or both Officer Brandt or Bodisco see Cornell running

across Sharon Meadow before they saw him on Hippie Hill? (3) Was Hippie Hill known

to Officer Brandt and Bodisco as a high crime area? (4) Was it reasonable for the officers

to believe that Cornell had come out of the bushes on Hippie Hill? (5) Did the officers

have knowledge of the types of criminal activity in the Hippie Hill area that could lead

them to believe that Cornell may be involved in criminal activity near Hippie Hill?

(6) Did the officers reasonably believe that Cornell appeared nervous or evasive on

Hippie Hill because of the presence of the officers? (7) Did the officers do or say

anything on Hippie Hill that would have communicated to Cornell that they wanted to

contact him? (8) Did the officers reasonably believe that Cornell fled from them on

Hippie Hill? (9) Did the officers reasonably believe that Cornell removed his jacket to

change his appearance in order to avoid detention? (10) Did the officers observe Cornell

run off trail through the bushes? (11) Were Officer Brandt’s only words said to Cornell,

“I will shoot you!”? (12) Did Officer Brandt or Farrell do or say anything on the path

above the AIDS Memorial Grove that would have communicated to Cornell that they

wanted him to stop? (13) Did the officers see Cornell glance back on the path above the

AIDS Memorial Grove? (14) Did the officers reasonably believe that Cornell knew or

should have known that they were police officers? (15) Did Officer Farrell see Officer

Brandt pointing his gun in Cornell’s direction? (16) Would an objectively reasonable

officer believe that Cornell ran away from Officer Brandt in order to resist the use of

unreasonable force? (17) Did Cornell go down the hill into the Grove accidentally or

intentionally? (18) Was it reasonable for the officers to believe that Cornell went down

the hill into the Grove with the intent of evading them?

9

alternate juror. The reconstituted jury began deliberations anew the following week, but

after two additional days of deliberating, remained hung, though on only one question.

The court decided to take the Phase I verdict at that point despite the unanswered

question, over an objection from the defense.6

In its Phase I verdict, the jury found unambiguously for the appellants on the

assault claim. Beyond that, however, the results were mixed, with some findings tending

to favor the officers’ version of events, and some findings tending to favor Cornell’s

version. In the findings favorable to Cornell, the jury found that Officers Brandt and

Bodisco never said anything or otherwise communicated to Cornell their desire to speak

to him on Hippie Hill; that it was not reasonable for them to believe Cornell had come

out of the bushes on Hippie Hill; and that, contrary to Officer Bodisco’s testimony, they

did not see Cornell run off trail through the bushes when he left Hippie Hill. The jury

deadlocked on the question whether it was reasonable for Officers Brandt and Bodisco to

believe Cornell fled from them on Hippie Hill.

In the findings favoring the defense, on the other hand, the jury found that Officers

Bodisco and Brandt considered Hippie Hill to be a high crime area; that the officers’

knowledge of the types of crimes committed there “could lead them to suspect” Cornell

may have been engaged in criminal activity; that the officers reasonably believed that

Cornell appeared “nervous or evasive” when he saw them; that they reasonably believed

Cornell shed his jacket in an effort to avoid being detected; that when Officers Brandt

and Farrell encountered Cornell on the High Path, they reasonably believed he knew they

were police officers; that a reasonable officer would not have believed Cornell was

fleeing from the use of unreasonable force against him by Officer Brandt; that, contrary

6

Defense counsel objected “for the record” to this procedure and insisted upon

answers to all of the Phase I special verdict questions. In a colloquy with the court when

the jury first reported an impasse on November 8, counsel had previously taken the

position the court had discretion to decide “what facts the Court needs to make” a

probable cause determination.

10

to Cornell’s testimony, he went down the hill from the High Path into the AIDS

Memorial Grove intentionally, not accidentally; and that it was reasonable for the officers

to believe he was trying to evade capture in doing so.

Based on the jury’s Phase I findings, the court ruled as a matter of law that

defendants did not have reasonable suspicion to detain Cornell and that he was arrested

without probable cause. In the hiatus between Phases I and II, the defense stipulated to

liability on the part of all defendants on the negligence claim, leaving only the tortious

interference with economic advantage claim and the Section 52.1 claim for decision in

Phase II. Moving on to the next phase of the jury deliberations, the court posed a series

of Phase II questions pertaining to these two claims and to issues of causation and

damages on all claims. With liability for false arrest and negligence established in Phase

I, the jury returned a Phase II special verdict finding liability on the tortious interference

and Section 52.1 claims,7 awarding total damages of $575,231, including $234,007 in

past economic damages, $266,224 in future economic damages, and $75,000 in past non-

economic damages, with judgment entered accordingly.8 The court then granted

Cornell’s motion to tax costs, awarding him $2,027,612.75 in attorney’s fees under

Section 52.1.

These timely appeals followed, from the judgment and from the attorney’s fee

award.

8

In the Phase II verdicts, the jury found liability against only Officers Brandt and

Bodisco on the intentional interference claim and against only Officer Brandt and

Sergeant Gin on the Section 52.1 claim. Based on the verdicts for Phase I and Phase II

and on the stipulation by all appellants to liability for negligence, judgment was entered

against all appellants on the false arrest claim and the negligence claim, against Officer

Brandt, Sergeant Gin and the City on the Section 52.1 claim, against Officers Brandt and

Bodisco on the intentional interference with economic relations claim, and in favor of all

appellants on the assault claim. The judgment awards the total damages jointly and

severally against all appellants.

11

II. DISCUSSION

A. Probable Cause to Arrest

Where the facts are not in conflict, the issue of probable cause is a question of law

reviewable de novo on appeal. (Giannis v. City and County of San Francisco (1978) 78

Cal.App.3d 219, 225; People v. Tyler (1961) 193 Cal.App.2d 728, 735.) We look to

whether facts known to the arresting officer “at the moment the arrest was made” (Beck v.

Ohio (1964) 379 U.S. 89, 90) “ ‘would persuade someone of “reasonable caution” that

the person to be arrested has committed a crime.’ ” (People v. Zaragoza (2016) 1 Cal.5th

21, 57; see Dunaway v. New York (1979) 442 U.S. 200, 208, fn. 9.) “The rule of probable

cause is a practical, nontechnical conception” that turns on an assessment of the facts

gathered by the arresting officer in the field (Brinegar v. United States (1949) 338 U.S.

160, 176) and is not governed by courtroom standards of proof. (Ibid.) Many verbal

formulae have been used to describe it, but distilled to their essence “ ‘[t]he substance of

all the definitions . . . is a reasonable ground for belief of guilt’ ” (id. at p. 175), where the

belief is “particularized with respect to the person to be . . . seized.” (People v.

Thompson (2006) 38 Cal.4th 811, 818.)

The legal standard we apply to assess probable cause is an objective one in which

the subjective motivations of the arresting officers have no role. (Whren v. United States

(1996) 517 U.S. 806, 813; Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033,

1045 (Gillan); Johnson v. Lewis (2004) 120 Cal.App.4th 443, 454.) But it is an

overstatement to say that what is in the mind of an arresting officer is wholly irrelevant,

for the objective test of reasonableness is simply a measure by which we assess whether

the circumstances as subjectively perceived by the officer provide a reasonable basis for

the seizure. (Agar v. Superior Court (1971) 21 Cal.App.3d 24, 29; see Devenpeck v.

Alford (2004) 543 U.S. 146, 153.)

Of course, temporary detention on grounds short of probable cause is also

constitutionally permissible in some circumstances. (Terry v. Ohio (1968) 392 U.S. 1,

20–21, 27.) A “brief, investigatory stop” is justified where an officer has “reasonable,

articulable suspicion that criminal activity is afoot,” implicating the suspect. (Illinois v.

12

Wardlow (2000) 528 U.S. 119, 123 (Wardlow); see In re Tony C. (1978) 21 Cal.3d 888,

893.) While the more demanding standard of probable cause requires a basis to suspect

someone of having committed a particular crime, reasonable suspicion to detain only

requires facts connecting the suspect to “criminal activity” more generally. (People v.

Campbell (1981) 118 Cal.App.3d 588, 594.) Like the probable cause determination, the

applicable test courts use to assess reasonable suspicion is an objective one, specific to

the detainee. (People v. Perrusquia (2007) 150 Cal.App.4th 228, 233.)

Our Supreme Court recently explained that “ ‘[a] detention is reasonable under the

Fourth Amendment when the detaining officer can point to specific articulable facts that,

considered in light of the totality of the circumstances, provide some objective

manifestation that the person detained may be involved in criminal activity.’ [Citation.]

Such reasonable suspicion cannot be based solely on factors unrelated to the defendant,

such as criminal activity in the area.” (People v. Casares (2016) 62 Cal.4th 808, 837–

838 (Casares).) Reasonable suspicion must rest on objective particulars tying a

particular person to criminal activity, rather than on a mere “hunch” that something is

odd or unusual about the person detained. (Id. at p. 838; see People v. Bower (1979) 24

Cal.3d 638, 647 [officer’s suspicions about white man found late at night in a “high

crime,” largely black neighborhood insufficient to justify detention where the officer

testified he had never seen a white person in that area at that time “for an innocent

purpose”].)

Cornell was arrested for the offense of “willfully resist[ing], delay[ing], or

obstruct[ing] [a] . . . peace officer . . . in the discharge . . . [of a] duty of his or her office”

under Penal Code section 148, subdivision (a). To violate this statute, the obstructive

conduct must impede the lawful performance of an officer’s duty. (People v. Curtis

(1969) 70 Cal.2d 347, 354; People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543.)

Thus, the analysis here focuses, at its core, on whether there was reasonable suspicion

justifying Cornell’s detention at any point between the time he was spotted on Hippie Hill

and the time he was arrested in AIDS Memorial Grove. If there was not, Officers Brandt

and Bodisco—and their fellow officers, since all of the officers involved in pursuing

Cornell constructively shared the same pool of information under the collective

13

knowledge doctrine9—were acting outside the lawful course of their duties when they

sought to detain him. That analysis drives the probable cause analysis, for if there was no

objectively reasonable basis to believe Cornell had violated Penal Code section 148,

subdivision (a) or any other law, probable cause to arrest was lacking as well. (Casares,

supra, 62 Cal.4th at p. 838 [“The detention being unlawful, the subsequent searches of

defendant’s person and the car he had been sitting in were also unlawful.”].)

We agree with the trial court that there was no reasonable suspicion to detain and

hence no probable cause to arrest. This incident took place in broad daylight in one of

the most heavily used public recreation areas in San Francisco. The jury found that when

the chase commenced, Officers Brandt and Bodisco knew little more than that they had

seen Cornell at a location where drug crimes often took place, but with nothing

connecting him to any criminal activity. The man had nothing in his hands, made no

furtive movements, and was speaking to no one. Nothing about the way he was dressed

indicated he might be hiding something under his clothing, and Officers Brandt and

Bodisco gave him no directions that he disobeyed. (See Casares, supra, 62 Cal.4th at

p. 838 [“[officer] described no furtive movement or other behavior by defendant

suggestive of criminal activity”].) They did not claim they recognized Cornell as

someone with previous involvement in criminal activity. They had no tip that a drug

transaction was about to take place in which he fit the description of someone likely to be

involved. And they saw no activity on Hippie Hill, by anyone, indicating that drug

activity was currently taking place or about to take place there.

On the strength of testimony from Officer Bodisco that Cornell “looked worried”

and avoided making eye contact with him and his partner, the jury found the officers

reasonably believed Cornell seemed “nervous or evasive.” But “ ‘[l]ooking at a police

officer and then looking away does not provide the officer with “a particularized and

objective basis for suspecting the person stopped of criminal activity.” ’ ” (People v.

Pitts (2004) 117 Cal.App.4th 881, 888.) “In general, although eye contact, or the lack

thereof, may be considered as a factor establishing reasonable suspicion, . . . whether the

9

See, e.g., People v. Ramirez (1997) 59 Cal.App.4th 1548, 1552–1556.

14

contact is suspicious or not ‘is highly subjective and must be evaluated in light of the

circumstances of each case.’ [Citations.] The skepticism with which this factor is treated

is in large part due to the fact that reliance upon ‘suspicious’ looks can so easily devolve

into a case of damned if you do, equally damned if you don’t. [Citations.] Accordingly,

. . . that factor is ‘of questionable value . . . generally.’ ” (United States v. Montero-

Camargo (9th Cir. 2000) 208 F.3d 1122, 1136.)

The jury’s finding that the officers’ knowledge of Hippie Hill as a hotspot for

crime “could lead them to suspect that Cornell may be involved in criminal activity” was

equally true of anyone else in the vicinity. Because these two officers had insufficient

information to do anything more than seek a consensual encounter with Cornell as they

watched him on Hippie Hill (see Casares, supra, 62 Cal.4th at p. 838 [“when . . . officer

initiated the identification procedure, . . . he had no factual basis for a reasonable

suspicion, as opposed to a mere hunch, that defendant was then engaged in any criminal

activity”]), the critical sequence of events took place when the chase began. At that

point, as Officers Brandt and Bodisco turned their car toward Cornell—without saying

anything over their loudspeaker or otherwise signaling an intent to approach—Cornell

was already walking away, which he was entitled to do. (See People v. Souza (1994) 9

Cal.4th 224, 234 (Souza) [“a person approached by police for questioning may decline to

answer the questions and ‘may go on his way’ ”].) Even assuming Cornell was

deliberately trying to avoid Officers Brandt and Bodisco as he ran off, that did not change

things. Not every effort to avoid an encounter with police warrants detention. If it did,

anyone who turns off the freeway in haste after spotting a police car in the rearview

mirror could be stopped for trying to avoid being pulled over.

Pointing to the fact Cornell shed his jacket after starting to run, a move the jury

found gave Officers Brandt and Bodisco reasonable grounds to believe he was trying to

“avoid detection,” appellants emphasize that evasive flight can provide reasonable

suspicion, especially when the experience of officers with crime in a particular area

connects a fleeing person to illicit activity. It is true that, in a high crime area,

“unprovoked flight upon noticing the police” may provide reasonable suspicion in some

circumstances (Wardlow, supra, 528 U.S. at p. 124), and that “headlong flight wherever

15

it occurs”—which can be considered the “consummate act of evasion”—will justify a

stop. (Ibid.) But the High Court has declined to adopt a “ ‘bright-line rule’ authorizing

the temporary detention of anyone who flees at the mere sight of a police officer.” (Id. at

p. 126 (conc. & dis. opn. of Stevens, J.)), favoring instead a totality of the circumstances

approach that requires consideration of flight along with other objective indicators

connecting a suspect to criminal activity. (See also Souza, supra, 9 Cal.4th at p. 239

[“No single fact—for instance, flight from approaching police—can be indicative in all

detention cases of involvement in criminal conduct. Time, locality, lighting conditions,

and an area’s reputation for criminal activity all give meaning to a particular act of flight,

and may or may not suggest to a trained officer that the fleeing person is involved in

criminal activity. Consequently, a ‘bright-line’ rule applicable to all investigatory stops

. . . would be improper.”].)

What is important here is whether the circumstances known to the officers, in

totality, connected Cornell to suspected criminal activity, not whether, as a standalone

matter, they perceived him to be fleeing from them when he began to run. The jury made

no finding, and there was no evidence, that Cornell was carrying something Officers

Brandt and Bodisco thought could be contraband and discarded it as he ran. Nor was

there any finding that Cornell was desperate, panicked or in “[h]eadlong flight”

(Wardlow, supra, 528 U.S. at p. 124), suggesting consciousness of guilt. The special

verdict questions bearing on how Cornell ran, to be sure, are somewhat ambiguous, but in

interpreting them—after considering the same evidence the jury did—the trial court’s

ultimate legal conclusion shows it read the findings as accepting Cornell’s version of

what happened at the start of the chase (after a “cool down” break he resumed his run

along a pedestrian path, removed his jacket while running, and took enough time along

the path to fold it and place it on a nearby stump), rather than the officers’ version (he

suddenly broke into a “full blown sprint,” ran off-trail, and “dumped” his jacket while

running through the bushes).10 Because the findings suggest the jury saw key details in

10

The trial court’s function is to draw legal conclusions from the facts found by

special verdict (Code Civ. Proc., § 624), and, unless the findings are incomplete,

16

the officers’ reported perceptions of Cornell at this crucial juncture as embellishments,

we see no reason to disagree that the more benign view of the facts known to them is the

best interpretation of what the jury found.11

Appellants rely heavily on People v. Rodriguez, supra, 207 Cal.App.4th 1540,

where a man jumped from a car and ran from an officer who was attempting to make a

stop. Another officer who heard a radio broadcast about the fleeing suspect saw him a

minute later, walking nearby. The second officer shined a spotlight on the suspect and

got out of his patrol car, at which point the suspect sprinted away, crossing traffic lanes,

reaching into his pocket while he ran, and then throwing an item over a chain-link fence.

Upon being chased down and detained, the suspect admitted he “knew he was running

from a police officer” but ran because he had “an outstanding warrant and a digital scale

in his pocket.” (Id. at p. 1543.) On these facts the court concluded there was more than

enough justification to detain, closing its opinion with the remark, “This is not a case

where appellant was out for an evening jog.” (Id. at p. 1544, italics added.) Here,

nothing contradicts Cornell’s testimony that he was, in fact, out for a jog. Nor are there

any of the particulars we see in Rodriguez, where the officers had cause to detain at the

outset—in the traffic stop—which led the suspect to flee at a full sprint, putting himself at

risk in traffic while he ran.

Shifting their focus slightly, appellants point to Cornell’s later actions on the High

Path, where he defied an order to stop and launched into a sprint through the woods with

inconsistent or “hopelessly ambiguous”—which is not the case here—the court may

interpret the verdict in view of the pleadings, evidence and instructions. (Woodcock v.

Fontana Scaffolding & Equipment Co. (1968) 69 Cal.2d 452, 456–457 [trial judge’s

function is to interpret the verdict “ ‘from its language considered in connection with the

pleadings, evidence and instructions’ ”; if trial court’s interpretation is incorrect,

appellate court will interpret the verdict if it is possible to give a correct interpretation].)

We review any such interpretation de novo. (Ibid.)

11

The jury answered “No” to Question No. 10, which indicates it did not find

credible the testimony from Officer Bodisco that Cornell ran off-trail through the bushes,

consistent with its earlier “No” response to Question No. 4, indicating it had also rejected

the officers’ testimony that they believed Cornell emerged from the bushes at the top of

Hippie Hill when they first saw him.

17

desperate abandon, scrambling down the side of a hill into the AIDS Memorial Grove.

This sequence of events on the High Path, they say, was part of a fluid series of events

leading up to the moment of arrest. By then, appellants contend, the jury’s findings

establish without doubt that Cornell was in full flight, clearly indicating consciousness of

guilt. They argue that, given the evolving nature of the situation, we must not limit the

question to what Officers Brandt and Bodisco knew at the outset of the chase, but must

consider all the circumstances known to them prior to Cornell’s surrender. We agree, but

the problem for appellants is that what happened on the High Path was provoked. The

jury’s finding that Officers Brandt and Farrell reasonably perceived Cornell to be running

away from them at that point does not negate the obvious: Foolishly or not, Cornell ran

away at the point of a gun and a threat of “I will shoot you.” Other than this panicked

reaction—which Officer Brandt brought about—there was no greater cause to detain

Cornell on the High Path than there was on Hippie Hill.12

Granted, the better and certainly the safer course for Cornell was to surrender on

the High Path, but in order for his defiance to constitute a violation of Penal Code section

148, Officers Brandt and Farrell still had to be acting in the lawful performance of their

duties, which places the focus back on what happened at the beginning of the chase.

Because Officers Brandt and Bodisco did not have reasonable suspicion to detain in the

first place, the trial court properly concluded that none of the appellant officers acted in

the lawful course of his duties at later points in time. Thus, when Cornell darted away on

the High Path, it made no difference whether he took off out of fright, still unaware he

was being chased by police officers (as he claims), or out of a desire not to be caught,

despite having looked straight at two uniformed officers, in defiance of their command to

12

We might have been inclined to conclude otherwise if the jury had found that

Cornell, in reaction to a command from Officer Brandt to stop, had committed some

crime posing a threat to any of the appellant officers or to the public. Under Brown v.

Illinois (1975) 422 U.S. 590, that would have attenuated the taint of the unjustified

attempt to detain him. But merely fleeing on foot from a show of force does not bring

Brown doctrine into play. (United States v. Brodie (D.C. Cir. 2014) 742 F.3d 1058, 1063

[Brown attenuation doctrine not applicable where detainee, in response to officers’ orders

to put his hands on car hood preparatory to a search of his person, “fled on foot, and the

manner of his flight in itself posed no incremental threat to anyone”].)

18

stop (as the officers claim). Officer Brandt chased down and trained a weapon on a

running man about whom he knew virtually nothing, except that this was someone who

had the temerity to try to elude capture. Without something objectively tying him to

criminal activity, we conclude that none of the appellant officers had a legal basis to

detain—much less probable cause to arrest—on Hippie Hill, on the High Path, or in

AIDS Memorial Grove.

B. Incomplete Phase I Special Verdict

In addition to claiming there was reasonable suspicion to detain and thus probable

cause to arrest, appellants challenge the Phase I verdict on procedural grounds. After

many days of deliberation in Phase I, and after the jury had sent multiple messages to the

court asking about specific questions posed on the Phase I Verdict Form, and after

repeatedly reporting an inability to reach a verdict on a number of those questions, the

jury finally managed to reach a verdict on all but one question, Question No. 8.

Appellants argue that this question—which asked the jury to find whether Officers

Brandt and Bodisco reasonably believed Cornell was fleeing from them when he began

running on Hippie Hill—was so material to the issue of reasonable suspicion that it was

reversible error to accept the Phase I verdict without an answer to it. On that basis, they

contend it was an abuse of discretion to deny their motion for a mistrial. We cannot

agree.

Even assuming the acceptance of an incomplete Phase I Verdict Form was error,

we do not see the factual issue presented by Question No. 8 as so material to the total mix

of facts that it would have changed the outcome on the issue of reasonable suspicion had

it been decided in favor of appellants. Cornell would have been entitled to walk away

had the officers approached him on Hippie Hill, as we note above. Our analysis of the

circumstances when he left Hippie Hill assumes Officers Brandt and Bodisco did

perceive he ran from them, as they testified, and as Question No. 8 asked the jury to find,

but even granting that assumption we do not think the totality of what they knew at that

stage points to anything more than a hunch that he could have had some connection to

criminal activity on Hippie Hill. We thus conclude the court did not abuse its discretion

by denying appellants’ motion for a mistrial. (See Blumenthal v. Superior Court (2006)

19

137 Cal.App.4th 672, 679 [“ ‘A trial court should grant a mistrial only when a party’s

chances of receiving a fair trial have been irreparably damaged, and we use the

deferential abuse of discretion standard to review a trial court ruling denying a

mistrial.’ ”)

C. Statutory Immunity Under Penal Code Section 847, Subdivision (b)

Next, appellants argue we should reverse because the trial court never

“specifically addressed” whether the appellant officers are statutorily immune for the

false arrest of Cornell. Penal Code section 847, subdivision (b) provides that “[t]here

shall be no civil liability on the part of, and no cause of action shall arise against, any

peace officer . . . , acting within the scope of his or her authority, for false arrest or false

imprisonment arising out of any arrest” under specified circumstances, and one of those

circumstances, set forth in subdivision (b)(1), is that “[t]he arrest was lawful, or the peace

officer, at the time of the arrest, had reasonable cause to believe the arrest was lawful.”

We see no error here either. California courts speak of “reasonable cause” and

“probable cause” interchangeably (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069;

O’Toole v. Superior Court (2006) 140 Cal.App.4th 488, 510), and appellants cite no case

recognizing any meaningful distinction in the two phrases. The statutory scheme of

which Penal Code section 847 is part,13 much of which was enacted in 1872 as part of the

Field Code, uses both terms without differentiation, and the few cases that apply

subdivision (b)(1)—which first appeared in language added by amendment in 195714—

give no separate consideration to its reach after completing their analyses of probable

cause. (See O’Toole, at pp. 511–513; Hamilton v. City of San Diego (1990) 217

Cal.App.3d 838, 844 (Hamilton).) Thus, the trial judge here was not alone in perceiving

no need to undertake an analysis of appellants’ statutory immunity argument, separate

from her probable cause analysis.

13

Penal Code Part 2, Title 3, Chapter 5, section 833 et seq.

14

Statute 1957, chapter 2147, section 5, page 3806; Assembly Bill No. 1857,

approved by Governor July 8, 1957 (1957 Reg. Sess.).

20

While novel, appellants’ argument has worthy bona fides. It is based on a reading

of the language of Penal Code 847, subdivision (b), that was first advocated in 1963 by

the eminent scholar of governmental immunity in California, Professor Arvo Van

Alstyne. Focusing his attention on the fact that the statute, by its literal terms, affords

immunity for false arrest if “the arrest was lawful, or the peace officer, at the time of the

arrest, had reasonable cause to believe the arrest was lawful” (italics added), Professor

Van Alstyne argued that the disjunctive phrase “reasonable cause to believe” would be

surplusage if it did not defeat liability for unlawful arrests as well as lawful ones. (See

“A Study Relating to Sovereign Immunity” (Jan. 1963) 5 Cal. Law Revision Com. Rep.

(1963), at pp. 407–408 (1963 Van Alstyne Study).) To trigger the protection of the

statute, he argued, an officer should only be required to show he in fact believed the

arrest was justified. (Id. at p. 408.)15

Giving a modern twist to what was, in effect, a call for immunity by Professor Van

Alstyne based on a standard of subjective good faith, appellants suggest we read into

Penal Code section 847, subdivision (b), the federal standard for qualified immunity that

has evolved in the last three decades, which is based on an objective appraisal of whether

an officer facing civil suit violated “clearly established” law, and is not simply a test of

subjective good faith. (See Estate of Lopez v. Gelhaus (9th Cir. 2017) 871 F.3d 998,

1005, 1017–1018.) This immunity doctrine, developed by the federal courts in the

context of Fourth Amendment claims under 42 U.S.C. section 1983 (Section 1983),

deriving it from the common law with no statutory foundation, is purely judge-made.

(Anderson v. Creighton (1987) 483 U.S. 635, 645 (Anderson); see Harlow v. Fitzgerald

15

“At the Legislature’s request, the California Law Revision Commission

submitted a comprehensive report in 1963, which gave rise to the statutory system that

now governs the field of public entity tort liability. . . .[¶] Professor . . . Van Alstyne was

the California Law Revision Commission’s chief consultant and much of his work gave

rise to the present statutory system.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d

202, 229 (conc. opn. of Baxter, J.) “The 1963 study was authored by Professor . . . Van

Alstyne and represented [his] views . . . and not necessarily those of the Law Revision

Commission. (1963 Van Alstyne Study, supra, 5 Cal. Law. Revision Com. Rep. at p. 5,

fn.*.)” (Property Reserve, Inc. v. Superior Court (2016) 1 Cal.5th 151, 182, fn. 10.)

21

(1982) 457 U.S. 800, 813-819; Pierson v. Ray (1967) 386 U.S. 547, 557.) Citing

Venegas v. County of Los Angeles (2007) 153 Cal.App.4th 1230 (Venegas II),16 Cornell

contends the federal common law doctrine of qualified immunity “does not apply at all to

state law claims, specifically false arrest claims,” but he never specifically engages with

appellants’ reading of the text of section 847, subdivision (b).

Cornell is correct that Venegas II held that the federal qualified immunity “does

not apply to actions brought under . . . [S]ection 52.1” (153 Cal.App.4th at p. 1246), but

the appellate panel in that case took care to mention it was not addressing “whether a

statutory immunity might apply.” (Ibid.) We understand appellants to be taking up the

issue left open there, using Penal Code section 847 as the statutory basis for their

argument, while, in effect, bringing in federal qualified immunity, so to speak, “through

the back door.” Even if we were receptive to the idea of introducing federal qualified

immunity into California law in this fashion despite the holding in Venegas II—we are

not, since we view that opinion as soundly reasoned—we reject the premise that Penal

Code section 847, subdivision (b)(1) adds an extra layer of protection beyond what is

already afforded by the doctrine of probable cause. Because nothing in the statutory

scheme for official immunity in California alters the rule that “[u]nder California law, a

police officer is not granted governmental immunity for false arrest and imprisonment”

(O’Toole, supra, 140 Cal.App.4th at p. 510), we see no basis to borrow the federal rule of

qualified immunity absent specific legislative authorization.

We do not agree that Penal Code section 847 provides that authorization.

Subdivision (b)(1) of Penal Code section 847 is coextensive with the doctrine of probable

cause (Hamilton, supra, 217 Cal.App.3d at p. 846), but goes no further. Since at least the

16

Venegas II is one of a series of appellate opinions arising out of a suit brought

by plaintiff David Venegas against the County of Los Angeles and various deputies of the

Los Angeles Sheriff’s Department seeking damages in connection with his alleged

wrongful detention and arrest. It was decided on remand following the California

Supreme Court’s opinion in Venegas v. County of Los Angeles (2004) 32 Cal.4th

820, 843 (Venegas), which, as we discuss below, is central to our analysis of the

appellant’s claim of error in connection with the Section 52.1 verdict here.

22

early 1950s, it has been settled that a “police officer who makes an arrest without a

warrant and without justification may be held civilly liable for false arrest and

imprisonment.” (Dragna v. White (1955) 45 Cal.2d 469, 471 (Dragna).)17 When the

language of Penal Code section 847, subdivision (b) was added to the Penal Code by

amendment in 1957, nothing in the legislative history suggests it was intended to reverse

or supersede Dragna. Quite to the contrary, what little discussion there was of this

specific amendment as Assembly Bill No. 1857 moved through the Legislature indicates

it was understood as a codification of then-existing law. (See Sen. Interim Judiciary

Com. (1955–1957), Fourth Progress Report to the Legislature, Rep. on Assem. Bill No.

1857, at p. 427 [Senate Interim Judiciary Committee Report], quoting statement of the

District Attorneys Association concerning Assembly Bill No. 1857 [“[t]his bill seeks to

amend the Penal Code sections on arrest—to make them reflect the law of arrest as

declared and interpreted by the appellate courts of California—and to incorporate parts of

the Uniform Arrest Act, with the intention that the statutory law of California shall be a

17

(See also Miller v. Glass (1955) 44 Cal.2d 359, 363; Hughes v. Oreb (1951) 36

Cal.2d 854.) Even in their era, the Dragna line of cases did not break new ground. They

simply applied in the setting of unlawful arrest and false imprisonment the firmly rooted

common law principle that where a law enforcement officer engages in tortious acts

within the scope of his office, he is acting under color of law—meaning under pretense of

legal authority, even though his acts are illegal—and thus he may be held liable in tort.

(Abbott v. Cooper (1933) 218 Cal. 425, 432 [“[W]here a person holding the office of

sheriff or constable does acts colore officii, though he had no sufficient warrant to do the

act, he is responsible to third persons in an action for a breach of official duty. Such a

rule is declared to be supported by the weight of authority.”]; see Steven L. Winter, The

Meaning of “Under Color of” Law (1992) 91 Mich. L.Rev. 323, at pp. 342–346

[common law origins of the concept of extra-legal official conduct undertaken “under

color of law”].) The same concept has long been accepted in law enforcement

misconduct cases under federal civil rights law. (Monroe v. Pape (1961) 365 U.S. 167,

181–187, overruled on other grounds in Monell v. Department of Social Services of City

of New York (1978) 436 U.S. 658.)

23

true, accurate and concise guide to the substantive rights and duties of peace officers and

citizens alike”]; id. at p. 430 [citing Dragna as established law]).18

The surplusage argument on which appellants’ proffered interpretation of Penal

Code section 847 hinges, echoing Professor Van Alstyne, is not persuasive. The

legislative history makes clear why section 847, subdivision (b) uses the disjunctive in

referring to a “lawful” arrest “or” an arrest made on “reasonable cause to believe the

arrest was lawful.” The alternative “reasonable cause” scenario tracks a secondary

holding of the Dragna case, which addresses liability for unreasonably prolonged jail

detention prior to arraignment. (See Dragna, supra, 45 Cal.2d at p. 473 [“where the

arrest is lawful, subsequent unreasonable delay in taking the person before a magistrate

will not affect the legality of the arrest, although it will subject the offending person to

liability for so much of the imprisonment as occurs after the period of necessary or

reasonable delay.”].) Thus, the Senate Interim Judiciary Committee Report, citing

Dragna, explains that, “present legal thinking [citation] indicates that while an arrest,

based upon reasonable cause, is lawful, . . . a subsequent detention could be unlawful.

Such would be the case if after arrest, but before the arraignment, the arresting officer

18

In response to the California Supreme Court’s landmark decision recognizing

the exclusionary rule in People v. Cahan (1955) 44 Cal.2d 434, Assembly Bill 1857 was

an effort to update and clarify the statutory rules governing arrest in California. (Senate

Interim Judiciary Committee Report at pp. 437, 439; see House Resolution No. 184 (May

19, 1955) [discussing Cahan as the impetus for the bill].) Objections to Assembly Bill

No. 1857 focused primarily on the fact that, for the first time, broad legislative

recognition was being given to the power of warrantless detention in circumstances short

of arrest. (See Senate Interim Judiciary Committee Report at pp. 445–447 [quoting

comments of the State Bar of California conveyed by letter dated June 4, 1957 from

Joseph A. Ball, State Bar President, to Hon. Patrick D. McGee, Chairman of the

Assembly Judiciary Committee and sponsor of Assem. Bill No. 1857].) On our own

motion, under Evidence Code sections 452, subdivision (c) and 459, we take judicial

notice of the above-cited legislative history materials, since committee reports and

legislative resolutions are “indicative of the intent of the Legislature as a whole.”

(Metropolitan Water Dist. v. Imperial Irrigation Dist. (2000) 80 Cal.App.4th 1403, 1425,

italics omitted (Metropolitan Water).)

24

learn[s] of facts which destroy[] the belief upon which his reasonable cause was based.”

(Senate Interim Judiciary Committee Report, supra, at p. 430.)

Understood within the context provided by the legislative history, therefore, the

reference to both “lawful arrest” and arrest on “reasonable cause” in section 847,

subdivision (b)(1), is not surplusage. It is simply descriptive of the two-part holding in

Dragna that the Legislature recognized as foundational. Shorn of its textual premise, the

policy rationale for Professor Van Alstyne’s reading of the statutory language—that

peace officers should have protection from civil liability for arrests made upon reasonable

mistake—is already fundamental to the modern concept of probable cause and its close

cousin reasonable suspicion. Without clear and definite legislative authorization, we are

not inclined to announce that, after all these years, we have discovered in section 847,

subdivision (b) an additional layer of protection from civil liability beyond what already

exists through the doctrine of probable cause, or to use section 847 as the statutory basis

for importing federal qualified immunity into California law.19

D. Section 52.1 Claim

1. The Bane Act

On the recommendation of a commission appointed by then Attorney General

John Van de Kamp, the Tom Bane Civil Rights Act (Stats.1987, ch. 1277, §§ 3–4,

19

It is worth noting that the High Court’s decision to create for law enforcement

officers the added level of protection against Section 1983 liability provided by the

doctrine of qualified immunity was announced by a closely divided 5-4 vote, over a

vigorous dissent from Justice Stevens, who pointed out that such an immunity is

unnecessary because “the probable-cause standard itself recognizes the fair leeway that

law enforcement officers must have in carrying out their dangerous work. The concept of

probable cause leaves room for mistakes, provided always that they are mistakes that

could have been made by a reasonable officer.” (Anderson, supra, 483 U.S. 635, 661

(dis. opn. of Stevens, J.); id. at p. 659 [referring to the new rule as a “double standard of

reasonableness”].) And as recently as this past High Court term, sharp criticism of the

qualified immunity doctrine from at least one current member of the Court has been

expressed. (See Ziglar v. Abbasi (2017) 582 U.S. __, 137 S.Ct. 1843, 1871 (conc. opn. of

Thomas, J.) [“Our qualified immunity precedents . . . represent precisely the sort of

‘freewheeling policy choice[s]’ that we have previously disclaimed the power to

make.”].)

25

pp. 4544–4548) (the Bane Act) was enacted in 1987 “as part of a comprehensive package

of legislation to combat hate crimes.” (Venegas II, supra, 153 Cal.App.4th at p. 1242.)20

The Bane Act is enforceable criminally, under Penal Code section 422.6 (In re M.S.

(1995) 10 Cal.4th 698, 713, 715), and civilly, under Section 52.1 (Jones v. Kmart Corp.

(1998) 17 Cal.4th 329 (Jones).) While Penal Code section 422.6 is focused specifically

on hate crimes as conventionally understood (i.e. acts of violence or intimidation aimed

at members of statutorily protected groups), Section 52.1 sweeps much more broadly,

protecting against all conduct aimed at “ ‘interfer[ing]’ ” with rights “ ‘secured by’ ” the

constitutional or statutory law of the United States, or of California, where the

interference is carried out “by threats, intimidation or coercion,” whether or not the

offending conduct is motivated by discriminatory animus. (Venegas, supra, 32 Cal.4th at

p. 843.)21

The centerpiece of civil enforcement under the Bane Act is subdivision (a) of

Section 52.1, which provides, “If a person or persons, whether or not acting under color

20

(See Attorney General’s Com. on Racial, Ethnic, Religious and Minority

Violence, Final Report (April 1986) (Final Report of the Van de Kamp Commission);

Assem. Bill No. 63 (1987–1988 Reg. Sess.); Letter from John H. Van de Kamp to Hon.

Larry Stirling, Chairman, Assembly Public Safety Committee (March 18, 1987) [“This

bill implements the recommendations of the Attorney General’s Commission on Racial,

Ethnic, Religious and Minority Violence . . . .”].) Attorney General Van de Kamp’s letter

to Chairman Stirling is included in the Assembly Public Safety Committee’s bill file for

Assembly Bill No. 63. On our own motion, under Evidence Code sections 452,

subdivision (c) and 459, we take judicial notice of the Final Report of the Van de Kamp

Commission as well as the Van de Kamp letter to Chairman Stirling. (See Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 842, fn. 3 [judicial notice of Attorney

General’s report on gasoline pricing proper as an official act of executive department for

use as background material]; Varshock v. Department of Forestry & Fire Protection

(2011) 194 Cal.App.4th 635, 647 [“The report of a commission that proposes a statute

subsequently adopted is given ‘substantial weight’ in construing the statute . . . .”].)

21

The use of parallel criminal and civil enforcement mechanisms follows the

pattern of post-Civil War federal civil rights legislation. (See 18 U.S.C. § 241 [Section

241] and 18 U.S.C.§ 242 [Section 242], two criminal statutes which were enacted as

sections 6 and 17 of the Enforcement Act of 1870, and their civil counterpart statutes,

respectively, 42 U.S.C. § 1985(3) (Section 1985(3)) and Section 1983, which were

26

of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat,

intimidation, or coercion, with the exercise or enjoyment by any individual or individuals

of rights secured by the Constitution or laws of the United States, or of the rights secured

by the Constitution or laws of this state, the Attorney General, or any district attorney or

city attorney may bring a civil action for injunctive and other appropriate equitable relief

in the name of the people of the State of California, in order to protect the peaceable

exercise or enjoyment of the right or rights secured. . . .” Private actions by aggrieved

individuals are authorized under Section 52.1, subdivision (b), which provides for

recovery of compensatory and punitive damages, injunctive relief, civil penalties, and

attorney’s fees. “The creation of civil causes of action by victims of . . . conduct” in

violation of Section 52.1 is central to the Bane Act’s enforcement scheme. (Stamps v.

Superior Court (2006) 136 Cal.App.4th 1441, 1448 [legislative history shows private

actions intended to be “at the heart of the legislation”].)

Claims may be brought under Section 52.1, subdivision (a), against rights-

interfering conduct by private actors as well as by public officials (Jones, supra, 17

Cal.4th at p. 338), including police officers (Simmons v. Superior Court (2016) 7

Cal.App.5th 1113 (Simmons)). The word “interferes” as used in Section 52.1 has been

construed as “violates.” (See Jones, supra, 17 Cal.4th at p. 338 [California Supreme

Court equates “interfere” with “violate”].) “ ‘The essence of a Bane Act claim is that the

defendant, by the specified improper means (i.e., “threats, intimidation or coercion”),

tried to or did prevent the plaintiff from doing something he or she had the right to do

under the law or to force the plaintiff to do something that he or she was not required to

do under the law.’ ” (Simmons, at p. 1125; accord, Austin B. v. Escondido Union School

Dist. (2007) 149 Cal.App.4th 860, 883.)

enacted as section 19 of the Civil Rights Act of 1875 and section 2 of the Ku Klux Klan

Act of 1871. (See Eugene Gressman, The Unhappy History of Civil Rights Legislation

(1952) 50 Mich L.Rev. 1323, 1333–1334; Frederick M. Lawrence, Civil Rights and

Criminal Wrongs: The Mens Rea of Federal Civil Rights Crimes (1993) 67 Tul. L.Rev.

2113, 2135–2145 & Appendices [tracing the Post-Civil War civil rights statutes as

originally enacted through various recodifications in the United States Code].)

27

The model for Section 52.1 is a similarly worded Massachusetts statute,

Massachusetts Civil Rights Act of 1979 (Mass. Gen. Laws Ann., ch. 12, §§ 11H, 11I)

(MCRA). (Jones, supra, 17 Cal.4th at p. 335.) Some courts interpreting and applying

the MCRA and Section 52.1 have concluded, without close examination, that these

respective statutes are state law analogues to Section 1983. (See Cameron v. Craig (9th

Cir. 2013) 713 F.3d 1012, 1022 [“[T]he elements of the excessive force claim under

§ 52.1 are the same as under § 1983.”]; Batchelder v. Allied Stores Corp. (1985) 393

Mass. 819, 822–823 [473 N.E.2d 1128, 1131] [“the Legislature intended to provide a

remedy under [MCRA], coextensive with 42 U.S.C. § 1983 . . . , except that the Federal

statute requires State action whereas its State counterpart does not”].) In a broad

conceptual sense, that is true, since both Section 52.1 and the MCRA are supplements to

Section 1983, providing state law civil remedies for violation of constitutional and

statutory rights protected by federal as well as state law. But the most similar federal

civil rights statute to Section 52.1, textually and structurally—similar enough to suggest

that it, not Section 1983, was the original template our Legislature drew from—is Section

241. (See Final Report of the Van de Kamp Commission, Chptr. 3, “Proposed California

Civil Rights Act,” at p. 23 & p. 24, fn. 4 [“The Massachusetts Civil Rights Act is

patterned after federal civil rights statutes that protect rights guaranteed by federal laws

and the Constitution,” citing to Section 241, with no mention of Section 1983].)22

22

While the citation to Section 241 in the Final Report of the Van de Kamp

Commission provides fairly clear evidence of the genesis of Section 52.1, the language of

Section 52.1 is also traceable to Section 241 by direct comparison. Section 52.1 adopts

the signature structure of Section 241, which prohibits interference with the “free

exercise” or “enjoyment” of a broadly-defined class of “secured” civil rights. And

Section 52.1, like Section 241, targets the use of fear-inducing conduct to carry out the

interference. Where Section 52.1 prohibits “interfere[nce]” by “threats, intimidation or

coercion,” Section 241 prohibits attempts to “injure, oppress, threaten, or intimidate”

someone in the exercise of protected rights. In addition, the modern adaptation of

Section 241’s rights-interference structure in other federal legislation can be seen in the

Voting Rights Act of 1965, which uses language nearly identical to that of Section 52.1.

(See 52 U.S.C. § 10101(b) [“No person, whether acting under color of law or otherwise,

shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other

28

2. Appellants’ Contentions

Appellants argue we should reverse the finding for Cornell on his Section 52.1

claim along with the accompanying award of statutory attorney’s fees because there was

insufficient evidence to submit that claim to the jury. This attack on the Section 52.1

verdict here is three-pronged. First, appellants point out that since the jury rejected

Cornell’s assault claim, it necessarily rejected his claim of excessive force. Relying on

the requirement that a Section 52.1 claim must rest on evidence of “threat[], intimidation

or coercion,” they contend it was error for the trial court to submit this statutory claim to

the jury. We reject the premise of this argument. Nothing in the Phase I Special Verdict

Form required the jury to make any express finding on the issue of unreasonable force.

The Phase I jury instruction on assault defined unreasonable force using the Fourth

Amendment multifactor articulation of excessive force in Graham v. Connor (1989) 490

U.S. 386 (Graham), and listed the use of unreasonable force, so defined, as one of six

elements of assault.23 Because the use of unreasonable force was only one element of the

person for the purpose of interfering with the right of such other person to vote or to vote

as he may choose . . .”].)

By contrast, the text of Section 1983 and its criminal counterpart Section 242—

statutes which are limited to state action, and focus on “depriv[ation]’” of rights instead

of interference with rights—bears almost no similarity to Section 52.1, other than

common use of the phrase “under color of law.” Section 1985(3), the civil counterpart to

Section 241, also differs significantly from Section 241. Section 1985(3) is limited to

private acts of “conspir[ing] or go[ing] in disguise on the highway or on the premises of

another, for the purpose of depriving . . . any person or class of persons of the equal

protection of the laws . . . .” Based on its limiting language, a requisite element of any

Section 1985(3) claim is that it must be based on “some racial [or] . . . otherwise class-

based, invidiously discriminatory animus behind the conspirators’ action” (Griffin v.

Breckenridge (1971) 403 U.S. 88, 102), which is the very limitation our Supreme Court

held in Venegas does not apply to Section 52.1. (Venegas, supra, 32 Cal.4th at p. 843.)

This compare-and-contrast exercise thus leaves Section 241 as the most closely

comparable statute to Section 52.1 among its historical antecedents in federal civil rights

law.

23

The court’s assault instruction, adapted from Judicial Council Of California

Civil Jury Instructions (CACI) Nos. 1301 (Assault—Essential Elements) and 1305

29

assault instruction, the jury may have rejected the assault claim while still believing there

was unreasonable force here.

Cornell’s theory was that Officer Brandt and Sergeant Gin committed an assault

by pointing a gun at him, putting him in fear of being shot. In support of this theory, he

presented evidence that the gun-pointing by both officers in a low-threat level situation

violated the San Francisco Police Department’s policy on the use of deadly force and

officer training standards for handling weapons. Indulging all inferences in favor of

reconciling the Phase I and Phase II verdicts, as we must, a rational jury in Phase II could

have concluded that, under the circumstances, the threatened use of deadly force was

unreasonable (see Robinson v. Solano County (9th Cir. 2002) 278 F.3d 1007, 1013

[officers’ conduct in pointing gun at detainee at close range presents triable issue of fact

on excessive force claim]), while at the same time concluding in Phase I that the gun-

pointing—standing alone—was not a substantial factor in the “harm” caused to Cornell.

On this reading of the jury’s verdicts, what accounts for the Phase II findings against

Officer Brandt and Sergeant Gin on the Section 52.1 claim is that the gun-pointing

combined with the unlawful arrest, the baseless Penal Code section 148 citation, and all

of the other mistreatment of Cornell following the arrest, caused the harm.

The explanation for the finding against Cornell on the assault claim, but in his

favor on the Section 52.1 claim, may also be one of timing. In resolving the assault

claim, the jury may have decided in Phase I that Officer Brandt and Sergeant Gin were

privileged to use force under Penal Code section 835a [“[a]ny peace officer who has

reasonable cause to believe . . . [an arrestee] has committed a public offense may use

reasonable force to effect the arrest]”, but then, following the court’s determination of no

(Battery by Police Officer), advised the jury that, to prove assault, Cornell must establish

that (1) a defendant threatened to touch him in a harmful or offensive manner, (2) it

reasonably appeared to him the threat was about to be carried out, (3) the threat

constituted unreasonable force, (4) he did not consent to the touching, (5) he was harmed,

and (6) the threatening conduct was a substantial factor in causing his harm.

30

probable cause, concluded in Phase II that there was no such privilege.24 For both of

these reasons, we do not accept the premise that the jury’s adverse assault verdict in

Phase I destroyed the basis for Section 52.1 liability in Phase II. (See Bender v. County

of Los Angeles (2013) 217 Cal.App.4th 968, 978 (Bender) [where an arrest is unlawful

and excessive force is used in effectuating it, there is coercion within the meaning of

Section 52.1].)

Second, appellants argue that Cornell proved a false arrest, at most, and that

liability under Section 52.1 cannot be based on false arrest alone. (See Allen v. City of

Sacramento (2015) 234 Cal.App.4th 41, 67, 69 (Allen) [rejecting claim that an arrest

without probable cause constitutes “coercion” within the meaning of Section 52.1].) We

have more here than a simple false arrest. Cornell’s arrest was carried out with threats of

violence and was just the start of a series of events suggesting an intent to demean him

and set him up for termination, without regard to whether the suspicions that led to the

arrest were well-founded. After an interrogation by Officer Brandt at Park Station during

which Brandt accused Cornell of lying, over his protestations he had done nothing wrong,

Cornell was finally released, nearly six hours following his arrest. By that time, a team

of officers had undertaken a fruitless hunt for incriminating evidence in Golden Gate

Park; a secret recording device was placed next to Cornell in an ambulance “because [he]

might say something stupid,” which yielded nothing; and a hospital drug test turned up

negative.

Then, upon Cornell’s release, he was cited for the misdemeanor offense of

violating Penal Code section 148, subdivision (a). That citation was referred to the

24

The trial court gave a Phase I instruction under Penal Code section 835a in

connection with the assault claim, but did not re-instruct on Penal Code section 835a in

Phase II. Appellants contend the omission of a Penal Code section 835a instruction in

Phase II was error, but they made no specific request for such an instruction in Phase II,

and as a result, they have waived the issue. Even had they made one, however, they

would not have been entitled to another Penal Code section 835a instruction, since, as

noted, by that point—given the trial court’s no probable cause determination at the

conclusion of Phase I—the requirement in Penal Code section 835a that Officer Brandt

and Sergeant Gin acted with “reasonable cause to believe the person to be arrested has

committed a public offense” was lacking.

31

internal affairs unit of the San Francisco Police Department, and without further

investigation by internal affairs, the citation became the basis of a misconduct charge,

resulting in Cornell’s firing. Officer Brandt, who gave Cornell the citation, admitted not

knowing the factual basis for the Penal Code section 148 charge, and Sergeant Gin, who

approved the citation, admitted he had no independent knowledge about why it was

issued. According to Alice Villagomez, the head of Human Resources in the San

Francisco Police Department, any experienced officer would have understood the citation

would likely result in Cornell’s termination. All of this evidence supports an inference

not only that Officer Brandt and Sergeant Gin arrested Cornell unlawfully, but that they

acted spitefully toward him as well since they knew or should have known the career-

ending Penal Code section 148 citation they gave him upon his release was baseless.25

Third, appellants invoke Shoyoye v. County of Los Angeles (2012) 203

Cal.App.4th 947 (Shoyoye), on which Bender and Allen both rely. We are told that

Shoyoye “requires a showing of coercion independent from the coercion inherent in the

wrongful detention itself” (Shoyoye, at p. 959), and that, because none of the

mistreatment of Cornell is meaningfully segregable or discrete from his arrest, appellants

still must prevail as a matter of law on the Section 52.1 claim. We think appellants read

too much into Shoyoye. There, the plaintiff was arrested on outstanding bench warrants

for two minor offenses, one based on a theft by someone posing as him, and upon a

subsequent court appearance he was ordered released. (Id. at pp. 950–951.) Due to a

computer error, however, he remained in Los Angeles County jail on a parole violation

hold order meant for someone else. (Id. at pp. 951–953.) Kafkaesque is an overused

25

Cf. Gillan, supra, 147 Cal.App.4th at pages 1047, 1052–1053 (affirming jury

finding of liability against police defendants on Section 52.1 claim by high school girls’

basketball coach who was arrested without cause on an unfounded molestation charge

that district attorney declined to prosecute for lack of evidence, while reversing damages

award because the trial court erroneously submitted to the jury defamation and intentional

infliction of emotional distress claims for which defendants had official immunity,

allowing the jury to award nearly $4.5 million in damages in lump sum on all claims).

32

term, but it fairly describes plaintiff Shoyoye’s 16-day incarceration.26 After the mistake

was finally discovered and he was released, plaintiff Shoyoye sued the county for

keeping him in custody despite the release order, alleging a false imprisonment claim for

his wrongful incarceration as well as a Section 52.1 claim on the theory that the county’s

failure to discover the mistaken hold order violated his right under the Fourth

Amendment and under article 1, section 13 of the California Constitution “to be free from

. . . unreasonable seizure by actual or implied use of threats, intimidation or coercion.”

(Id. at p. 953.)27

26

Shoyoye, supra, 203 Cal.App.4th at pages 951–952 (“Shoyoye asked a total of

six to eight people for assistance during his incarceration. . . . [I]nmates were periodically

permitted to submit one written question on a ‘yellow sheet’ form. Shoyoye submitted

such a form asking, ‘Why am I here?’ He received the response that he was subject to a

‘DCL hold.’ He submitted another form inquiring what a ‘DCL hold’ was, along with

one other question, and received the response that he was only entitled to ask one

question and he had asked two. He submitted other yellow sheets indicating he believed

he should not be there, but he received no helpful responses. [¶] Shoyoye told custody

assistant Lawrence Wong that he thought he should be released. Wong acknowledged

that if what he said was true, then there was a problem. Wong told him to talk to Deputy

Niels Gittisarn. Shoyoye asked him for assistance, and Gittisarn told him, ‘Get back to

me.’ However, when Shoyoye attempted to speak to him the next day, Gittisarn rebuffed

him, yelling that he was busy.”).

27

No doubt because the issue was never raised, Shoyoye is silent on a key

threshold question: Did plaintiff Shoyoye assert a legally viable right “secured by the

Constitution or laws of the United States, or of the rights secured by the Constitution or

laws of this state”? It is not evident to us that he did. Because the reasonableness of a

seizure for Fourth Amendment purposes is judged at the time of an arrest or detention,

once Shoyoye conceded there was probable cause for his arrest he appears to have

conceded away at the same time any legal basis for a claim of unreasonable seizure

beyond that point. (See Rivera v. County of Los Angeles (9th Cir. 2014) 745 F.3d 384,

389–390 [“post-arrest incarceration is analyzed under the Fourteenth Amendment”]; Lee

v. City of Los Angeles (9th Cir. 2001) 250 F.3d 668, 683–685 [separately analyzing arrest

under Fourth Amendment and post-arrest incarceration under Fourteenth Amendment].)

While a post-arrest claim of Fourth Amendment violation may be available where the

plaintiff seeks to challenge a subsequent pretrial detention by attacking the existence of

probable cause ab initio (see Manuel v. Joliet (2017) 580 U.S.__ [137 S.Ct. 911, 915,

919] [Section 1983 claim asserted by prisoner held for 48 days in pretrial detention

pursuant to judicial determination of probable cause based on a false statements from the

33

Reversing a plaintiff’s jury verdict for Shoyoye on the Bane Act claim while

affirming on the false imprisonment claim, the appellate panel in Shoyoye set forth its

analysis of Section 52.1 liability in two steps, first concluding that, “[t]he statutory

framework of section 52.1 indicates that the Legislature meant the statute to address

interference with constitutional rights involving more egregious conduct than mere

negligence.” (Shoyoye, supra, 203 Cal.App.4th at p. 958; see id. at p. 959 [“The apparent

purpose of the statute is not to provide relief for an overdetention brought about by

human error rather than intentional conduct”].) Although that would have been enough

to resolve the Section 52.1 claim had it been asserted on a standalone basis without an

accompanying tort claim, the court went on in a separate section to explain that violation

of Section 52.1 requires a showing of coercion “independent from the coercion inherent

in the wrongful detention itself.” (Shoyoye, at pp. 959, 960–961.) While acknowledging

that plaintiff Shoyoye’s imprisonment may have been “traumatic” and “frightening,” and

that “County employees certainly were rude to him at times,” the court concluded that

“they did not threaten or intimidate [him] for voicing his opinion that he should be

released. They coerced him to remain incarcerated, but they did not for example coerce

him to stop inquiring about his release, threaten him for doing so, or punish him in any

way. No one ignored plaintiff deliberately, knowing that he should in fact be released, let

alone purposefully threaten or intimidate him. At worst they were rude and indifferent to

his inquiries. But jail officials do not have a duty to be polite.” (Id. at p. 961.) We see

the case before us differently, for reasons we explain below.

3. Shoyoye is a Jail Overdetention Case that Began with A Lawful

Arrest

To begin with, the record here supports a finding of more than negligence or lack

of courtesy. More importantly, we view the second step of the court’s Section 52.1

analysis in Shoyoye—its independent from inherent coercion test—as inapplicable where,

as here, a Bane Act plaintiff pleads and proves a constitutionally unlawful arrest. We

arresting officer is properly analyzed under the Fourth Amendment]), Shoyoye made no

such claim.

34

reach this conclusion upon a close reading of Shoyoye, paying careful attention to its facts

and to the claims at issue there. The situation leading to plaintiff Shoyoye’s mistaken

incarceration started with his arrest, and originally he alleged a constitutionally

unreasonable seizure, but as the case proceeded there was never any dispute that the

arrest was lawful. In fact, he conceded there was probable cause to arrest him. (Shoyoye,

supra, 203 Cal.App.4th at p. 951, fn. 2.) Thus, the nub of his Section 52.1 theory was not

unlawful arrest, but rather his continued incarceration despite a judicial release order—in

short, jail overdetention.

At trial, Shoyoye presented evidence that, while in jail, he inquired repeatedly

about why he had not been released, but was ignored by his jailers until, through a friend,

he managed to have a member of the Legislature look into his circumstances, which

ultimately triggered his release. (Shoyoye, supra, 203 Cal.App.4th at pp. 951–953.) On

that record, the appellate court affirmed the false imprisonment verdict (id. at p. 963),

consistent with well-established California law that a jailer who “knew or should have

known of the illegality of the imprisonment” will be liable in tort for false imprisonment.

(Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 717–718 (Sullivan).)28 While

the act of keeping Shoyoye in jail despite his pointed inquiries was sufficient to support

28

The test for false imprisonment in jail overdetention cases established in

Sullivan “requires either that the sheriff have actual knowledge that the imprisonment of

the plaintiff is unlawful or alternatively that he have some notice sufficient to put him, as

a reasonable man, under a duty to investigate the validity of the incarceration.” (Sullivan,

supra, 12 Cal.3d at p. 719.) Shoyoye’s brief discussion of false imprisonment recites its

requisite elements (“ ‘(1) the nonconsensual, intentional confinement of a person,

(2) without lawful privilege, and (3) for an appreciable period of time, however brief”

(Shoyoye, supra, 203 Cal.App.4th at p. 958, quoting Easton v. Sutter Coast Hospital

(2000) 80 Cal.App.4th 485, 496)), and then concludes without elaboration that “[t]he

evidence presented at trial was clearly sufficient to establish those elements.” (Shoyoye,

at p. 958.) The court never mentions Sullivan and appears to assume there is something it

calls “a tort claim for negligent false imprisonment” (ibid.)—the Sullivan test is actually

more akin to one requiring at least gross negligence—but the result it reaches, affirming

the false imprisonment verdict on facts showing that plaintiff Shoyoye repeatedly brought

his mistaken incarceration to the attention of multiple jail employees, tracks Sullivan’s

reasoning.

35

tort liability, the court saw his jailers’ negligent failure to discover they were holding the

wrong man—a mistake attributable, at bottom, to computer error—as insufficient to

support Section 52.1 liability. The difference in the court’s treatment of these two claims

is key, for any consideration of the breadth of Shoyoye’s Bane Act holding must begin

with the recognition that maintaining a meaningful distinction between tort and statutory

liability was fundamental to its reading of Section 52.1.

When the court announces that Section 52.1 requires “coercion independent from

the coercion inherent in the wrongful detention itself” (Shoyoye, supra, 203 Cal.App.4th

at p. 959), its focus is on whether the requisite level of scienter for Section 52.1 liability

had been met in a setting where the plaintiff proved negligence, at most. To support

Section 52.1 liability in that context, the court observes, there must be “an additional

showing of ill will or blameworthy conduct.” (Id. at p. 958, italics added.) It found no

evidence that while in jail “any conduct directed at [Shoyoye] was for the purpose of

interfering with his constitutional rights.” (Id. at p. 961, italics added.) “[Jail] employees

could reasonably rely on the information in the computer system, based on the reasonable

assumption that the quality control check would catch errors.” (Ibid.) All of Shoyoye’s

treatment while in jail, the court concludes, was “reasonable and incident to maintaining

a jail,” and even if his jailers did something to him that might be characterized as

“intimidation” or “coercion,” none of it was “carried out in order to effect a knowing

interference with [his] constitutional rights.” (Ibid., italics added.)

Shoyoye uses a variety of terms to describe the scienter it has in mind (see 203

Cal.App.4th at p. 958 [“intentional and callous”]; id. at p. 959 [“deliberate or spiteful”];

id. at p. 961 [“knowing and blameworthy”]), but its analysis sheds little light on how the

required level of scienter should be evaluated in unlawful arrest cases. Bender suggests

an answer, holding that, on the facts presented there—the plaintiff was arrested without

probable cause, handcuffed, and then gratuitously beaten and pepper-sprayed while

offering no resistance—constitutionally excessive force met the required standard. But in

the end Bender is just as opaque as Shoyoye. Ultimately, the court couches its holding in

the same analytical framework as Shoyoye (Bender, at p. 981 [“[w]here, as here, an arrest

is unlawful and excessive force is applied in making the arrest, there has been coercion

36

‘independent from the coercion inherent in the wrongful detention itself,’ ”] original

italics), thus implicitly accepting the applicability of Shoyoye’s “independ[ence] from

inherent coercion” test in unlawful arrest cases.

We agree that the use of excessive force can be enough to satisfy the “threat,

intimidation or coercion” element of Section 52.1, but we do not accept the premise that

Shoyoye applies in unlawful arrest cases. Because, read closely, Shoyoye’s discussion of

coercion “independent from the coercion inherent in the wrongful detention itself” was

aimed at separating tort liability from statutory liability in the specific context of a jail

overdetention following a lawful arrest—on a record where no legally viable claim of any

constitutional violation was pleaded or proved—we view its “independ[ence] from

inherent coercion” test as simply inapplicable. The case before us is not a jail

overdetention case. A constitutionally unlawful arrest was proved, and, as noted above,

we have more than a simple false arrest. Under these circumstances, the better approach,

in our view, is to focus directly on the level of scienter required to support a Section 52.1

claim, without the trappings of Shoyoye’s frame of analysis.

4. Where an Unlawful Arrest is Properly Pleaded and Proved, the

“Threat, Intimidation or Coercion” Element of Section 52.1 Requires

a Specific Intent to Violate Protected Rights

We acknowledge that some courts have read Shoyoye as having announced

“independen[ce] from inherent coercion” as a requisite element of all Section 52.1 claims

alleging search-and-seizure violations, but we think those courts misread the statute as

well as the import of Venegas.29 By its plain terms, Section 52.1 proscribes any

29

(See, e.g., Lyall v. City of Los Angeles (9th Cir. 2015) 807 F.3d 1178, 1196

[“[n]umerous California decisions make clear that a plaintiff in a search-and-seizure case

must allege threats or coercion beyond the coercion inherent in a detention or search in

order to recover under the Bane Act”], citing Allen, supra, 234 Cal.App.4th at p. 69

[unlawful arrest]; Quezada v. City of Los Angeles (2014) 222 Cal.App.4th 993, 1007–

1008 [unlawful search]; Shoyoye, supra, 203 Cal.App.4th at p. 959.) It strikes us as an

overstatment to say there are “numerous California decisions” for this proposition or that

our case law is “clear“ on the point. Allen, a pleading case, and the sole published

California appellate opinion to consider Shoyoye in any depth, ultimately holds only that

“conclusory allegations of ‘forcible’ and ‘coercive’ interference with plaintiffs’

37

“interference with” or attempted “interference with” protected rights carried out “by

threat, intimidation or coercion.” Nothing in the text of the statute requires that the

offending “threat, intimidation or coercion” be “independent” from the constitutional

violation alleged. Indeed, if the words of the statute are given their plain meaning, the

required “threat, intimidation or coercion” can never be “independent” from the

underlying violation or attempted violation of rights, because this element of fear-

inducing conduct is simply the means of accomplishing the offending deed (the

“interference” or “attempted interference”). That is clear from the structure of the statute,

which reads, “If a person or persons, whether or not acting under color of law, interferes

by threat, intimidation, or coercion,” a private action for redress is available. (§ 52.1,

subd. (a), italics added.)

In Venegas—which rejected a construction of Section 52.1 limiting its

applicability to “threat[s], intimidation or coercion” against minorities and other

statutorily protected groups—the Supreme Court declined to place “added restrictions on

the scope of section 52.1” beyond its plain language, concluding that that “would appear

to be more a legislative concern than a judicial one.” (Venegas, supra, 32 Cal.4th at

p. 843.) The same may be said here. Properly read, the statutory phrase “threat,

intimidation or coercion” serves as an aggravator justifying the conclusion that the

underlying violation of rights is sufficiently egregious to warrant enhanced statutory

remedies, beyond tort relief. We see no reason that, in addition, the required “threat,

intimidation or coercion,” whatever form it may take, must also be transactionally

“independent” from a properly pleaded—and proved—unlawful arrest.

The phrase “under color of law” indicates, without doubt, that the Legislature

intended to include law enforcement officers within the scope of Section 52.1 if the

requisites of the statute are otherwise met. (See ante, fn. 17.) Much of what law

constitutional rights are inadequate to state a cause of action for a violation of section

52.1.” (Allen, at p. 69.) Quezada refers briefly to Shoyoye’s independent from inherent

coercion test in a background summary of Section 52.1 law, but never applies it, relying

instead on the fact that no coercion at all was present in the case. (Quezada, at p. 1008).

38

enforcement officers do in settings that test the limits of their authority is “inherently

coercive.” Given that reality, it seems to us inconsistent with an intent to bring law

enforcement within the scope of the statute—which is what the phrase “under color of

law” does—to say, categorically, even where an unlawful arrest is properly pleaded and

proved, that “where[ever] coercion is inherent in the constitutional violation alleged, . . .

the statutory requirement of ‘threats, intimidation, or coercion’ is not met.” (Shoyoye,

supra, 203 Cal.App.4th at p. 959.) When applied to both lawful and unlawful conduct,

such a reading of Section 52.1, in effect, creates a judicially-fashioned immunity; and not

merely a qualified immunity, but an absolute one covering a broad category of activity so

long as it may be described as “inherently coercive.”

In federal court, where Section 52.1 claims are frequently brought along with

Section 1983 claims under federal pendent jurisdiction, “[t]he Bane Act’s requirement

that interference with rights must be accomplished by threats[,] intimidation or coercion

‘has been the source of much debate and confusion.’ ” (McKibben v. McMahon (C.D.

Cal. Apr. 17, 2015, No. EDCV 14-02171 JGB (SPx)) 2015 U.S. Dist. LEXIS 176696, at

p. *7 (McKibben); see also K.T. v. Pittsburg Unified School Dist. (N.D. Cal. 2016) 219

F.Supp.3d 970, 982 [“[c]ourts deciding whether the ‘threat, intimidation or coercion’

[element of Section 52.1] must be distinct from the alleged underlying constitutional or

statutory violation have come out all over the map”].) We have endeavored to provide

some clarity.

In doing so, we are not obliged to follow the construction the Supreme Judicial

Court of Massachusetts placed on the MCRA in what appears to be some brief, fugitive

dicta at the end of the opinion in Longval v. Commissioner of Correction (1989) 404

Mass. 325 [535 N.E.2d 588] (Longval), which Shoyoye relied upon (Shoyoye, supra, 203

Cal.App.4th at p. 960 [discussing Longval]) and which appears to be the original source

of the confusion. (See Jones, supra, 17 Cal.4th at p. 337 [“the rule of deference to

another state’s interpretation of a statute that provided a model for a California statute

‘establishes . . . only a presumption of legislative intent . . . [and] even when the

presumption properly operates it does not compel the adoption of the judicial

construction of the other jurisdiction’s statute’ ”].) Longval, a qualified immunity case,

39

gave no consideration to the text or structure of the MCRA, much less its origin in federal

civil rights law.30

Accordingly, we hold that, where, as here, an unlawful arrest is properly pleaded

and proved, the egregiousness required by Section 52.1 is tested by whether the

circumstances indicate the arresting officer had a specific intent to violate the arrestee’s

right to freedom from unreasonable seizure, not by whether the evidence shows

something beyond the coercion “inherent” in the wrongful detention. (See In re M.S.,

supra, 10 Cal.4th at p. 713 [adopting for purposes of Pen. Code, § 422.6 the specific

intent standard first enunciated in Justice Douglas’s plurality opinion in Screws v. United

States (1945) 325 U.S. 91 (Screws)]; see also People v. Lashley (1991) 1 Cal.App.4th

938, 948–949 (Lashley).) The Screws specific intent standard has been an established

feature of federal civil rights law under Section 241 since the mid-1960s (United States v.

Price (1966) 383 U.S. 787, 792, fn. 5; United States v. Guest (1966) 383 U.S. 745, 753–

754)31 and, as acknowledged by appellants’ counsel at oral argument, it accomplishes in

substance the same thing as the independent from inherent coercion test since it ensures

ordinary negligence is not cognizable under Section 52.1.

We recognize, obviously, that Section 52.1 is civil, while Section 241 is criminal,

but in adopting the Screws standard we find it particularly significant that so much of the

30

The uncertainty engendered by Shoyoye here in California appears to be

mirrored among courts applying Longval in Massachusetts. (Compare Nuon v. City of

Lowell (D. Mass. 2011) 768 F.Supp.2d 323, 335, fn. 8, citing Bally v. Northeastern Univ.

(1989) 403 Mass. 713, 718 [532 N.E.2d 49, 52] [arrest without probable cause is covered

by MCRA]; Batchelder, supra, 473 N.E.2d at p. 1131 and Santiago v. Fenton (1st Cir.

1989) 891 F.2d 373, 383, with Ciolino v. Eastman (D. Mass. 2015) 128 F.Supp.3d 366,

380, citing only federal cases, Santiago v. Keyes (D. Mass. 2012) 890 F.Supp.2d 149,

156; Titus v. Town of Nantucket (D. Mass. 2011) 840 F.Supp.2d 404, 416; Goddard v.

Kelley (D. Mass. 2009) 629 F.Supp.2d 115, 129 [“[t]he majority of courts have held that

in cases involving wrongful arrests . . . , the fact of a Fourth Amendment violation,

standing alone, does not give rise to a claim under the MCRA”].)

31

See Hon. Paul J. Watford, Screws v. United States and the Birth of Federal Civil

Rights Enforcement (2014) 98 Marq. L.Rev. 465, 481–484.

40

text and structure of Section 52.1 appears to descend from Section 241. It seems to us

that, when our Legislature enacted hate crime legislation in 1987, it chose not to adhere

strictly to the federal scheme by adopting a civil enforcement statute on the model of

Section 1983, covering “deprivations” of rights and limiting the statute to public officials

or other conduct evincing state action. Instead, it used as a model Section 241—a

criminal conspiracy statute—giving the statute enough breadth to reach a wide range of

“interference” with “secured rights” by means of fear-inducing conduct, whether

undertaken by private actors or public officials. In essence, the Legislature created a

hybrid of the historic federal civil rights enforcement scheme, using Section 241 as a

unitary model for criminal as well as civil enforcement. The burden of proof is

fundamentally different in these two arenas, of course, but other than that we see no

reason why the applicable mens rea element ought to differ.32

32

Our reading of Section 52.1 is consistent with the view taken by “the majority of

federal district courts in California[, which] have held [in Bane Act cases] that ‘[w]here

Fourth Amendment unreasonable seizure or excessive force claims are raised and

intentional conduct is at issue, there is no need for a plaintiff to allege a showing of

coercion independent from the coercion inherent in the seizure or use of force.’ ”

(Simmons, supra, 7 Cal.App.5th at p. 1126, quoting Dillman v. Tuolumne County (E.D.

Cal., May 7, 2013, No. 1:13–CV–00404–LJO–SKO) 2013 U.S. Dist. LEXIS 65206, at

p. *58; Morse v. County of Merced (E.D. Cal., June 13, 2016, No. 1:16–CV–00142–

DAD–SKO) 2016 U.S. Dist. LEXIS 76731, at p. *38 [this rule is “the weight of authority

among District Courts in California”]; Mann v. County of San Diego (S.D. Cal. 2015) 147

F.Supp.3d 1066, 1092 [“the majority of courts follow this rule”].) These courts have held

various kinds of low- to mid-level force may meet the coercion element of Section 52.1.

(See, e.g., Lawrence v. City & County of San Francisco (N.D. Cal. June 15, 2017, No.

14-cv-00820-MEJ) 2017 U.S. Dist. LEXIS 92499, at pp. *40-41 [tight handcuffing,

including handcuffing to a bench]; Johnson v. Shasta County (E.D. Cal. 2015) 83

F.Supp.3d 918, 934 [yanking arrestee up from the ground by handcuffs, pointing gun and

threatening to shoot]; Dillman, supra, 2013 U.S. Dist. LEXIS 65206, at p. *22 [tight

handcuffing during transport of arrestee]; Stewart v. Saukkola (E.D. Cal. June 22, 2016,

No. 2:16-cv-00388-KJM-EFB) 2016 U.S. Dist. LEXIS 81520, at p. *9 [sitting on top of

prone detainee and kneeing him in back]; Haynes v. City and County of San Francisco

(N.D. Cal. Jul 28, 2010, No. C 09-0174 PJH) 2010 U.S. Dist. LEXIS 76829, at p. *18

[pushing arrestee into a wall].) And in some circumstances, depending on the right

alleged to have been interfered with, physical force is not required at all. (McKibben,

supra, 2015 U.S. Dist. LEXIS 176696, at p. *8 [“coercive choice” forced upon gay,

41

5. Application of the Specific Intent Standard

The application of the Screws specific intent standard here is straightforward. As

explained in Lashley, supra, 1 Cal.App.4th 938, which was cited with approval by our

Supreme Court in In re M.S., supra, 10 Cal.4th at p. 713, this test “ ‘essentially sets forth

two requirements for a finding of “specific intent” . . . . The first is a purely legal

determination. Is the . . . right at issue clearly delineated and plainly applicable under the

circumstances of the case?[33] If the trial judge concludes that it is, then the jury must

make the second, factual, determination. Did the defendant commit the act in question

with the particular purpose of depriving the citizen victim of his enjoyment of the

interests protected by that . . . right? If both requirements are met, even if the defendant

did not in fact recognize the [unlawfulness] of his act, he will be adjudged as a matter of

law to have acted [with the requisite specific intent]—i.e., “in reckless disregard of

constitutional [or statutory] prohibitions or guarantees.” ’ ” (Lashley, at pp. 948–949.)

Applying the first step of this test here, the “right at issue” is Cornell’s federal and

state constitutional right to be free from arrest without probable cause. Legally, there is

nothing vague or novel about that claim under the circumstances of this case. Viewing

the Phase I evidence in the light most favorable to Cornell, the protected right he asserts

was “clearly delineated and plainly applicable.” Thus, we reject appellants’ contention

bisexual or transgender inmates to accept segregated housing with fewer privileges than

other inmates]; M.H. v. County of Alameda (N.D. Cal. 2013) 90 F.Supp.3d 889, 898

[deliberate indifference to prisoner’s medical needs].) These cases stand in stark contrast

to others that apply the independent from inherent coercion test—in our view

incorrectly—outside the confines of jail overdetention, taking that test to the limit of its

logic. (See, e.g., Bordegaray v. County of Santa Barbara (C.D. Cal. 2016) 2016 U.S.

Dist. Lexis 172269, at pp.*39–41 [evidence of constitutionally excessive force in police

shooting case held insufficient to support Section 52.1 claim because, other than being

shot, the plaintiff failed to show any “threat, intimidation or coercion”].)

33

By way of illustration, we observe that the Section 52.1 claim in Shoyoye likely

would have not have met this first step of the specific intent standard because the plaintiff

in that case appears to have alleged no viable theory of constitutional violation. (See fn.

27, ante.) The same is true of a recent case applying Shoyoye, Julian v. Mission

Community Hospital (2017) 11 Cal.App.5th 360, 395 (“other than the actions necessary

to detain [plaintiff], which the police had probable cause to take, [plaintiff] alleged

without explanation that the police defendants ‘engaged in tactics to scare’ her”).

42

that, as a matter of law, the Section 52.1 claim never should have been submitted to the

jury. The second requirement, a question of fact, is whether appellants acted with the

“particular purpose” of depriving Cornell of his right to be free from arrest without

probable cause. Subjective “spite” was relevant here, along with all of the objective

circumstances surrounding the unlawful arrest, both before it and after it. But whether

the appellant officers understood they were acting unlawfully was not a requirement.

Reckless disregard of the “right at issue” is all that was necessary.

In Phase II, the jury was instructed that “Plaintiff Cornell claims . . . Defendants

Brandt and Gin intentionally interfered with or attempted to interfere with his civil rights

by threats, intimidation, or coercion.” According to the jury instructions, to return a

verdict for Cornell on the Section 52.1 claim, the jury was required to find that he proved

“all of the following: [¶] 1. That the Defendant made threats of violence against Plaintiff

causing Plaintiff to reasonably believe that if he exercised his right to be free from

unlawful detention or unlawful arrest, Defendant would commit violence against him and

that Defendant had the apparent ability to carry out the threats; [¶] 2. That Plaintiff was

harmed; and [¶] 3. That the Defendant’s conduct was a substantial factor in causing

Plaintiff’s harm.” (CACI No. 3066.) These instructions properly focused the jury on

intentional violation of Cornell’s right to be free from unreasonable seizure.

Although Cornell’s primary theory at trial was that the gun-pointing made his false

arrest particularly egregious (hence the focus on “threats of violence” in the instructions),

it must be borne in mind that he also submitted proof that the harm he suffered from the

arrest—his job loss, in particular—was inflicted out of spite. Considering the evidence

surrounding Cornell’s arrest in its full context, it seems to us a rational jury could have

concluded not only that Officer Brandt and Sergeant Gin were unconcerned from the

outset with whether there was legal cause to detain or arrest him, but that when they

realized their error, they doubled-down on it, knowing they were inflicting grievous

injury on their prisoner. On this reading of the evidence, these two officers had every

opportunity to exercise restraint as it became clearer and clearer that their initial

suspicions of Cornell were unfounded, but rather than let the matter go when they finally

released him, they retaliated against him as a way of undermining his ability to claim to

43

superiors he was arrested without probable cause. This apparent effort to obstruct

Cornell’s ability to assert his right to freedom from unreasonable seizure violated Section

52.1 just as surely as his actual arrest did, while compounding the harm. On this record,

we have no trouble concluding the specific intent standard was met.34

III. DISPOSITION

The judgment and the award of attorney’s fees and costs are affirmed. Respondent

shall recover costs on appeal.

34

Appellants present no separate argument in support of their appeal of the award

of statutory attorney’s fees and costs, apart from the contention that the Section 52.1

verdict should be reversed. Having concluded there is no infirmity in the Section 52.1

verdict, we will sustain the accompanying award of fees and costs. Appellants also

suggest in their reply brief that they seek to appeal from the judgment on the negligence

and interference with economic advantage claims, but there, too, they present no separate

argument and thus they have waived any defect in the judgment insofar as it rests on

liability for those claims.

44

_________________________

Streeter, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Rivera, J.

A141016, A142147/Cornell v. City & County of San Francisco

45

A141016, A142147/Cornell v. City & County of San Francisco

Trial Court: City & County of San Francisco Superior Court

Trial Judge: Hon. Lynn O’Malley Taylor

Counsel:

Haddad & Sherwin, Michael J. Haddad, Julia Sherwin, Genevieve K. Guertin, and T.

Kennedy Helm for Plaintiff and Respondent.

Dennis J. Herrera, City Attorney, Cheryl Adams, Chief Trial Deputy, Margaret W. Baumgartner,

Deputy City Attorney for Defendants and Appellants.

46