Venegas v. County of Los Angeles

BAXTER, J., Concurring.

I concur in the majority opinion’s conclusion that the Los Angeles County Sheriff acted as an agent of the state in undertaking the criminal investigation in this case, and that under Eleventh Amendment sovereign immunity principles, the sheriff was immune from prosecution for the asserted violations of the Federal Civil Rights Act of 1871 ( 42 U.S.C. § 1983 (section 1983)). (Majority opn. of Chin, J., ante, pt. II.) I further concur in the majority opinion’s discussion of the qualified immunity defense that may be available to the sheriff’s deputies with regard to those same section 1983 claims. (Majority opn., ante, pt. III.)

With considerably less enthusiasm, I also join in the majority opinion’s determination that, given the unambiguous language of subdivision (g) of Civil Code section 52.1 (section 52.1), plaintiffs adequately pleaded a cause of action “for unreasonable search and seizure” under that section notwithstanding their failure to allege that defendants acted with intent to discriminate, also commonly referred to as discriminatory animus. (Majority opn., ante, pt. IV.) I write separately to voice my concern that the Legislature, in amending section 52.1 by adding subdivision (g) in response to the Court of Appeal decision in Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797, 1809 [ 35 Cal.Rptr.2d 282 ] (Boccato), might have inadvertently transformed section 52.1 from its originally intended purpose as a weapon in the arsenal of interrelated statutory provisions designed to combat the rising incidence of hate crimes, to a generally applicable catchall provision that will encourage claimants to seek section 52.1’s sweeping remedies—including compensatory money damages, very substantial fines ($25,000), attorney fees, and other equitable relief—in commonplace tort actions to which those special statutory remedies were never intended to apply. As Los Angeles County (County) urges, to give effect to the literal language of section 52.1, subdivision (g) could result in an incalculable increase in the filing of lawsuits in our state’s courts and impose an inordinately heavy burden on our already financially strapped court system.

As will be explained, because the language of section 52.1 as amended through the addition of subdivision (g) is unambiguous, this court must dutifully construe it according to the plain import of its express terms. It is ultimately within the Legislature’s purview to determine if section 52.1, as amended, accurately effectuates the purpose and intent behind this antidiscrimination legislation, or whether the literal language of the amended statutory scheme now paints with far too broad a brush. I believe the Legislature would be well advised to reexamine the matter, and for that purpose, I offer the following brief survey of relevant legislative history and decisions of this and other courts to demonstrate that section 52.1 has always *845 been understood as the anti-hate-crime tool it was originally intended to be, and that the section has also long been understood as requiring that one charged with a violation of its letter and spirit must be shown to have acted with discriminatory intent.

I

The legislative history of section 52.1 clearly reflects that it was originally enacted “to stem a tide of hate crimes.” (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338 [ 70 Cal.Rptr.2d 844 , 949 P.2d 941 ].) Nearly every court which has construed this statute has recognized that in light of its original purpose—to combat hate crimes—a violation of section 52.1 requires a showing that the defendant acted with discriminatory animus, i.e., an intent to interfere “by threats, intimidation, or coercion” (§ 52.1, subd. (a)) with the victim’s exercise or enjoyment of his or her constitutional or statutory rights, based on the victim’s actual or perceived racial, ethnic, religious, or sexual orientation or other minority status. (See, e.g., In re Michael M. (2001) 86 Cal.App.4th 718, 725-726 [ 104 Cal.Rptr.2d 10 ] [defining requisite intent for hate crimes].)

Section 52.1, commonly referred to as the “Tom Bane Civil Rights Act” or the “Bane Act,” was enacted in 1987 as part of a renewed effort to combat the disturbing rise in “hate crimes,” or, put otherwise, the rising incidence of civil rights violations motivated by hatred and discrimination. This purpose of the legislation is undeniably evidenced by both its legislative history and the case law interpreting it, including several decisions of this court.

The Legislature’s focused effort to combat discriminatory and pernicious conduct often referred to as hate crimes began with the 1976 enactment of Civil Code section 51.7, commonly referred to as the “Ralph Civil Rights Act” or the “Ralph Act.” That legislation provides, in pertinent part: “All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. . . .” (§ 51.7, subd. (a).) The obvious purpose of the Ralph Act is to declare unlawful, and civilly actionable, any acts of violence or intimidation by threats of violence directed against any individual because of his actual or perceived membership in a minority or similarly protected class.

It is particularly noteworthy that the enumerated list of protected classes of persons found in the Ralph Act was never intended to be exclusive. Section 51.7 expressly provides that, “The identification in this subdivision of *846 particular bases of discrimination is illustrative rather than restrictive.” (§ 51.7, subd. (a), italics added.)

In this same vein, 10 years later, the Legislature enacted section 52.1 to further address the rising tide of hate crimes in California. As originally enacted, the core provisions of section 52.1 read:

“(a) Whenever a person or persons, whether or not acting under color of law, interferes by threats, 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.

“(b) Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her name and on his or her own behalf a civil action for injunctive and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured.” (Added by Stats. 1987, ch. 1277, § 3, p. 4544, italics added.)

These central provisions of the Bane Act have not been substantively changed since its enactment nearly 20 years ago. Amendments since 1987 added new penalty provisions ($25,000) which may be sought in both public and private actions under the act. Of particular interest here, subdivision (g) of section 52.1 was added by amendment in response to the Court of Appeal’s holding in Boccato, supra, 29 Cal.App.4th 1797, 1809 . Subdivision (g) declares that an action brought under section 52.1 is “independent of any other action, remedy, or procedure that may be available to an aggrieved individual under any other provision of law, including, but not limited to, an action, remedy, or procedure brought pursuant to Section 51.7 [the Ralph Act].”

From its inception, the Bane Act’s purpose has been to specifically target unlawful conduct motivated by discriminatory animus that interferes with the victim’s enjoyment of statutory or constitutional civil rights. The report on Assembly Bill No. 63 (1987-1988 Reg. Sess.) by the Senate Rules Committee, 1987-1988 Regular Session (Senate Report), identifies as the “key issue” in the enactment of the Bane Act whether there should be “additional civil *847 and criminal penalties for crimes 1 which are committed because of the victim’s racial, ethnic, religious, sexual orientation or other minority status?” (Sen. Rep., supra, p. 1.)

The Senate Report explained further that under the then current law, i.e., the Ralph Act, quoted above, hate crimes perpetrated through acts of violence or threats of violence were subject to considerably expanded civil penalties. (Sen. Rep., supra, p. 2.) However, due to the inadequacy of that law and the rise in hate crimes, the stated purpose of the Bane Act was to subject “the use of force or threats to interfere with the free exercise of one’s constitutional rights” (Sen. Rep., supra, pp. 2-3), based on the victim’s membership or perceived membership in one of the enumerated protected classes, to both civil and criminal remedies. In other words, what the Bane Act did at its inception was to add “threats, intimidation or coercion” to the already proscribed “violence, or threats of violence ” sanctioned under the Ralph Act, where any such conduct interferes with or attempts to interfere with the statutory and constitutional rights of persons in minority or similarly protected classes, or who were perceived by the defendant to be members of such protected classes.

I agree with County’s observation that the motivation behind the Bane Act was neither expressly nor indirectly linked to any dramatic rise in the violation of federal and state civil rights in general, and that the enactment of the statute was clearly driven by the rise in violations of such rights motivated by hate and discriminatory animus. That a violation of the Bane Act was originally envisioned as being circumscribed by the requirement that the defendant be shown to have acted with discriminatory intent has been repeatedly recognized in both this court’s decisions and numerous decisions of the Courts of Appeal that have construed section 52.1.

We effectively acknowledged this circumscribed purpose and scope of the legislation in Jones v. Kmart Corp., supra, 17 Cal.4th 329 , wherein we observed: “The Legislature enacted section 52.1 to stem a tide of hate crimes. [Citation.] The statutory language fulfills that purpose by providing remedies for certain misconduct that interferes with any ‘right[] secured by the Constitution or laws of the United States, or ... of this state . . .’ ” (Id. at p. 338, italics added.)

Similarly, in In re M.S. (1995) 10 Cal.4th 698 [ 42 Cal.Rptr.2d 355 , 896 P.2d 1365 ], we bserved that the Bane Act was “enacted by the Legislature ... in response to the alarming escalation in the incidence of hate crimes in *848 California and the inadequacy of existing laws to deter and punish them.” (Id. at pp. 706-707, fn. 1.) The issue in In re M.S. involved two Penal Code provisions (Pen. Code, §§ 422.6, 422.7) which, like their civil counterpart, section 52.1, were also enacted by the Bane Act. It is significant that each of those Penal Code sections is a criminal hate crime provision, and that each requires a showing that the violator acted with unlawful discriminatory intent insofar as victims under those sections must belong to, or be perceived by the defendant as belonging to, a minority or similarly protected class.

Likewise, the Court of Appeal in In re Michael M, supra, 86 Cal.App.4th 718 , recognized that “The Bane Act and related California statutes dealing with discriminatory threats and violence are California’s response to the alarming increase in hate crimes.” (Id. at p. 725, italics added, fn. omitted.) The court explained that “In urging gubernatorial approval of the Bane Act, its author referred to a report issued by the Los Angeles County Commission on Human Relations noting the increase of acts of racial violence and religious incidents in Los Angeles County during 1986 and stated that the Bane Act ‘addresses this problem.’ ” (Ibid., italics added.) And the court concluded that “the principal thrust of the statute is toward preventing the intimidation of a victim . . . , when the intimidation or interference is based on the victim’s actual or perceived protected characteristic.” (Id. at p. 726, italics added; see also McMahon v. Albany School District (2002) 104 Cal.App.4th 1275, 1294 [ 129 Cal.Rptr.2d 184 ] [“Civil Code sections 52 and 52.1, along with other statutes, were enacted in a coordinated effort to combat hate crimes”]; In re Joshua H. (1993) 13 Cal.App.4th 1734, 1748, fn. 9 [ 17 Cal.Rptr.2d 291 ] [“The Bane Act and related California statutes deal[] with discriminatory threats and violence” (italics added)]; Bay Area Rapid Transit Dist. v. Superior Court (1995) 38 Cal.App.4th 141, 144 [ 44 Cal.Rptr.2d 887 ] [Bane Act “provides for a personal cause of action for the victim of a hate crime” (second italics added)].)

In short, both the legislative history of section 52.1 and the manner in which the core purpose of that antidiscrimination statute has been viewed by this and other courts, since the time of its enactment, support a conclusion that intent to discriminate has long been understood as a required element of a section 52.1 violation, thereby justifying a plaintiff’s eligibility for the hate crime provision’s greatly expanded remedies.

II

The Court of Appeal in Boccato, supra, 29 Cal.App.4th 1797, 1809 , concluded that a plaintiff who brings an action under section 52.1 (the Bane Act) must be a member of one of the classes protected by Civil Code section 51.7 (the Ralph Act). Thereafter, in 2000, the Legislature enacted Assembly *849 Bill No. 2719 (1999-2000 Reg. Sess.) (hereafter Assembly Bill 2719) to explain that Boccato erred in that assumption, and to clarify that section 52.1 applies to an affected plaintiff “without regard to his or her membership in a protected class identified by its race, color, religion, or sex, among other things.” (Stats. 2000, ch. 98, § 1.)

The majority opinion observes that “Assembly Bill 2719 explained that ‘[sjection 52.1 of the Civil Code guarantees 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 without regard to his or her membership in a protected class identified by its race, color, religion, or sex, among other things.’ (Italics added.) We cannot reasonably interpret this language, or the unambiguous language of section 52.1 itself, to restrict the benefits of the section to persons who are actual or perceived members of a protected class.” (Majority opn., ante, at pp. 842-843.)

I agree that the unambiguous language of section 52.1, as amended by Assembly Bill 2719 through the addition of subdivision (g), does not on its face restrict the benefits of the section to persons who are actual or perceived members of a protected class. Nor do the findings and declarations made in connection with the enactment of Assembly Bill 2719 suggest that a plaintiff’s membership in such a protected class is a requirement for bringing suit under section 52.1. (Stats. 2000, ch. 98, § 1, subd. (a)(1).)

Boccato’s holding—that a section 52.1 plaintiff must be an actual member of a protected class—was wrong. Even for a Ralph Act violation (Civ. Code, § 51.7), a plaintiff’s actual membership in a protected class has never been required; it has always been understood that it is the defendant’s intent and his perception that his victim is a member of a protected class that controls, or, to put it another way, that the defendant be shown to have acted with discriminatory intent whether or not he was factually mistaken as to his victim’s actual status as a member of a protected class. To the extent a violation of the Bane Act (§ 52.1) has long been understood as requiring the same discriminatory intent as a violation of the Ralph Act, and that it is the actor’s unlawful intent, and not the victim’s actual membership in a protected class, that controls in establishing that requisite intent—it is not suprising that Boccato’s conclusion, that a section 52.1 victim must be an actual member of a protected class, cried out to the Legislature for nullification and correction.

Nonetheless, when one considers the legislative response to Boccato , as reflected in the language of section 52.1, subdivision (g), it is difficult to read that language as conveying anything other than that a defendant sued for a Bane Act violation need not be shown to have acted with discriminatory intent. Having amended section 52.1 with the chosen language of subdivision (g), *850 which provides that an action under section 52.1 is “independent of any other action, remedy, or procedure that may be available to an aggrieved individual under any other provision of law, including, but not limited to, an action, remedy, or procedure brought pursuant to section 51.7 [the Ralph Act],” it is hard to escape the conclusion that, under that literal langauge, a defendant’s alleged violation of the Bane Act no longer need be shown to have been motivated by discriminatory intent. In short, I conclude the Legislature amended section 52.1 with the intent to nullify and correct Boccato’s holding that a victim must be an actual member of a protected class, but may have inadvertently chosen language that, on its face, can only reasonably be read as providing that defendants alleged to have violated section 52.1 need not be shown to have acted with discriminatory intent.

Since the plain wording of amended section 52.1, on its face, is not reasonably susceptible of any other construction, I am constrained to join in the majority opinion’s conclusion that “in pursuing relief for those constitutional violations under section 52.1, plaintiffs need not allege that defendants acted with discriminatory animus or intent, so long as those acts were accompanied by the requisite threats, intimidation, or coercion.” (Majority opn., ante, at p. 843.)

The Legislature, of course, is not so constrained. The Legislature can choose to revisit the matter and reevaluate whether Assembly Bill 2719’s amendment of section 52.1 through the addition of subdivision (g), which now unambiguously distinguishes actions under the Bane Act from actions under the Ralph Act, is no longer faithful to the true purpose and intent to be served by these interrelated antidiscrimination provisions found side by side in the Civil Code.

Ill

Under section 52.1 as now amended, whenever any person, whether or not acting under color of law, interferes by threats, 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, a civil action may be brought under its provisions for greatly expanded compensatory damages, substantial fines ($25,000), injunctive and other appropriate equitable relief, as well as attorney fees.

Pragmatically speaking, the limitation in section 52.1 that the right being interfered with under section 52.1 be a right guaranteed by any state or federal law or constitutional provision is hardly a limitation at all. And although the proscribed conduct is further delineated by the requirement that *851 it be delivered in the form of a threat, intimidation, or coercion, it should not prove difficult to frame many, if not most, asserted violations of any state or federal statutory or constitutional right, including mere technical statutory violations, as incorporating a threatening, coercive, or intimidating verbal or written component. Without the further limitation that the violator be shown to have acted with discriminatory intent or animus, as originally intended from the time of the statute’s enactment, section 52.1 will soon come to be widely viewed as a convenient civil litigation tool through which to reach a garden-variety tort defendant’s deep pocket.

When one further considers that under a section 1983 cause of action the defendant must be shown to have acted under color of law, which is not a requirement for proceeding under section 52.1, and also, that under our holding today (applicable to county sheriffs), as well as our prior holding in Pitts v. County of Kern (1998) 17 Cal.4th 340, 348 [ 70 Cal.Rptr.2d 823 , 949 P.2d 920 ] (applicable to district attorneys), principles of sovereign immunity applicable to section 1983 suits will force many such actions to be brought instead under section 52.1 and similar state statutory counterparts, it is not difficult to envision how the statute will soon come to be abused.

In this time of economic crisis and uncertainty, the construction we are today compelled to place on the unambiguous language of amended section 52.1 could prove crippling to the coffers of local jurisdictions and municipalities. The Legislature would be well advised to take another careful look at the practical impact its recent amendment of section 52.1 will have on the scope and reach of the section’s greatly expanded remedial provisions.

With the foregoing reservations in mind, I concur in the majority opinion.

Brown, L, concurred.

Violations of court orders issued pursuant to section 52.1 are declared to be punishable as misdemeanors under the act. (See § 52.1, subd. (d); see also Pen. Code, § 422.9.)