Venegas v. County of Los Angeles

KENNARD, J., Concurring and Dissenting.

This case presents three issues arising from a civil rights action brought by plaintiffs David and Beatriz Venegas against the Los Angeles County Sheriff’s Department, the sheriff, and three of his deputies. I join the majority in the resolution of two of those issues but not the third.

I.

Evidence at trial established that when plaintiffs were pumping gas into their car, the three deputies stopped them on suspicion of car theft, searched the car, and then went to plaintiffs’ home and searched it. The deputies arrested David for possessing a car without a visible vehicle identification *852 number (Veh. Code, § 10751), a misdemeanor. The district attorney did not file any criminal charge against either plaintiff.

Plaintiffs brought suit, claiming violations of federal and state civil rights laws. The trial court ruled in favor of defendants, sustaining demurrers to some causes of action and entering nonsuit on others. The Court of Appeal reversed. This court reverses in part and affirms in part the judgment of the Court of Appeal, which on remand is to decide whether the sheriff’s deputies have a qualified immunity from liability on plaintiffs’ federal civil rights claims. (See maj. opn., ante, at p. 843.) I agree on the remand.

I also agree with the majority that the Court of Appeal correctly reinstated plaintiffs’ actions under Civil Code section 52.1 for interference with statutory or constitutional rights. (Maj. opn., ante, at p. 840.) I do, however, share Justice Baxter’s concerns about the potential breadth of the statute. (Cone, opn. of Baxter, J., ante.)

The third and last issue is this: Does the Los Angeles County Sheriff act on behalf of the state or the county when performing law enforcement functions? Reversing the Court of Appeal on this point, the majority holds that in California, a county sheriff acts as a law enforcement officer on behalf of the state, not the county, and thus is absolutely immune from liability in a federal civil rights action. (See 42 U.S.C., § 1983 (section 1983).) (Maj. opn., ante, at p. 828.) I disagree.

II.

Section 1983 provides for a damages action against “[ejvery person” who, while acting under color of law, subjects another to “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” The federal Constitution’s Eleventh Amendment grants sovereign immunity from such suits not only to each of the 50 states but also to state officers. (Will v. Michigan Dept, of State Police (1989) 491 U.S. 58, 71 [ 105 L.Ed.2d 45 , 109 S.Ct. 2304 ].) This is because a suit against a state officer “is no different from a suit against the State itself.” (Ibid.) Whether this immunity applies to a particular governmental official is a question of federal law, but the “inquiry is dependent on an analysis of state law.” (McMillian v. Monroe County (1997) 520 U.S. 781, 786 [ 138 L.Ed.2d 1 , 117 S.Ct. 1734 ].)

The majority concludes that county sheriffs, when performing law enforcement functions, are state rather than county officers and thus immune from section 1983 lawsuits. (Maj. opn., ante, at p. 828.) Central to that conclusion is this court’s decision in Pitts v. County of Kern (1998) 17 Cal.4th 340, 345 [ 70 Cal.Rptr.2d 823 , 949 R2d 920] (Pitts), in which the majority held that a *853 county’s district attorney acts on behalf of the state in prosecuting crimes, in establishing policy, and in training prosecutorial staff. Acknowledging that “Pitts involved district attorneys rather than sheriffs,” the majority here is quick to point out that Pitts “relied on statutes and analysis applying to both kinds of officers” and thus applies with equal force here. (Maj. opn., ante, at p. 831, italics omitted.)

I agree with the majority that the provisions governing district attorneys and sheriffs are the same. (See Cal. Const., art. XI [Local Government], §§ 1, subd. (b), 4, subd. (c) [Legislature and county charters shall provide for county officers including “an elected county sheriff [and] an elected district attorney”]; Gov. Code, § 24000 [“The officers of a county are: [f] (a) A district attorney [and] [f] (b) A sheriff”].) Both, in my view, are county officers. In Pitts , I joined Justice Mosk’s dissent. Relying on the same constitutional and statutory provisions just mentioned, the dissent concluded that a district attorney was an officer of the county. (Pitts, supra, 17 Cal.4th at p. 366 (dis. opn. of Mosk, J.).)

A brief observation about Justice Werdegar’s concurring and dissenting opinion. Justice Werdegar joined the majority in Pitts, supra, 17 Cal.4th 340 , concluding that district attorneys were state actors immune from section 1983 suit. But she reaches a contrary conclusion here, concluding as I do that sheriffs exercising their law enforcement functions are county officers. (Cone. & dis. opn. of Werdegar, J., post, at p. 854.) Justice Werdegar finds significant here that each “California county must pay tort judgments against its sheriff personally for acts in the scope of his or her employment, as well as judgments against the sheriff’s department generally.” (Id. at p. 857.) These obligations derive from Government Code provisions imposing liability on public entity employers, including counties, for their employees’ torts and requiring them to allocate budget provisions for tort judgments. (Gov. Code, §§ 815.2, 970.8.) These statutes, however, make no distinction between county sheriffs and district attorneys as employees of a county. Thus, I cannot join Justice Werdegar’s concurring and dissenting opinion, which relies on these statutes to justify her different legal conclusions about the status of county sheriffs and county district attorneys.

Justice Moreno has signed Justice Werdegar’s separate opinion. Thus, three members of this court—Justice Werdegar, Justice Moreno, and I—would hold that a California county sheriff is a county officer subject to federal civil rights suit. This is also the assessment of the United States Court of Appeals for the Ninth Circuit, as expressed in two decisions resolving the exact issue here, whether a sheriff performing law enforcement functions is a state or county officer. (See Bishop Paiute Tribe v. County of Inyo (9th Cir. 2002) 291 F.3d 549 , vacated on other grounds and remanded in Inyo County v. *854 Paiute-Shoshone Indians of the Bishop Cmty. of the Bishop Colony (2003) 538 U.S. 701 [ 155 L.Ed.2d 933 , 123 S.Ct. 1887 ]; Brewster v. Shasta County (9th Cir. 2001) 275 F.3d 803, 807-808 .) The Ninth Circuit has said it is not bound by a state court’s determination that its county sheriffs are state actors because the “[questions regarding section 1983 liability implicate federal, not state, law.” (Brewster, supra, at p. 811 .)

Because the Ninth Circuit considers California sheriffs performing law enforcement functions to be county officers, the majority’s contrary conclusion here creates a split that results in immunizing sheriffs from section 1983 liability in actions brought in state court while exposing them to liability in identical actions filed in federal court. This effectively drives California civil rights plaintiffs with actions against a county sheriff out of our court system and into federal court. To ensure uniformity in the enforcement of federal civil rights law in both state and federal courts in California, the United States Supreme Court should decide which view is correct.

Based on my conclusion that a county sheriff exercising law enforcement functions does so for his employing county, I would affirm that part of the Court of Appeal’s judgment reinstating plaintiffs’ section 1983 actions against the Los Angeles County Sheriff and Los Angeles County.

WERDEGAR, J., Concurring and Dissenting.

I concur in the majority opinion’s discussion of the deputy sheriffs’ qualified immunity defense (maj. opn., ante, at p. 839) and its analysis of liability under Civil Code section 52.1 (maj. opn., ante, at p. 841). I respectfully dissent from the decision (id., at p. 828) as to the immunity of a California sheriff’s office from liability for law enforcement activities under 42 United States Code section 1983 (section 1983).

The majority opinion’s conclusion on state-agent immunity, that in enforcing the law California sheriffs act under the control and as agents of the State of California, rather than their counties, and thus are not to be considered “persons” subject to official-capacity suits under section 1983, is not without precedent. It draws some support from the high court’s decision in McMillian v. Monroe County (1997) 520 U.S. 781 [ 138 L.Ed.2d 1 , 117 S.Ct. 1734 ] (McMillian), which relied prominently on the source of authoritative control in holding Alabama sheriffs were state rather than local officers, as well as this court’s decision in Pitts v. County of Kern (1998) 17 Cal.4th 340 [ 70 Cal.Rptr.2d 823 , 949 P.2d 920 ], which applied a source-of-control analysis to reach the same conclusion about California district attorneys.

Nevertheless, I believe the better view is that California sheriffs are county officers for purposes of section 1983 liability, even when investigating possible crimes, because any tort judgment against the sheriff’s department *855 would, as counsel for Los Angeles County (the County) conceded at oral argument, be a liability of the county rather than the state, and the control exercised by the state over sheriffs is not so pervasive and immediate as to overcome this crucial factor. The immunity of state agents from official-capacity suits under section 1983 derives from the sovereign immunity of states under the common law and the Eleventh Amendment to the United States Constitution; these sovereign immunities predate section 1983’s enactment, and Congress, in enacting the civil rights law, did not intend to disturb them. (Will v. Michigan Dept, of State Police (1989) 491 U.S. 58, 66-68 [ 105 L.Ed.2d 45 , 109 S.Ct. 2304 ] (Will).) And while the degree of state control is a relevant factor under the Eleventh Amendment, it is not dispositive; rather, “the vulnerability of the State’s purse” has been recognized as “the most salient factor in Eleventh Amendment determinations.” (Hess v. Port Authority Trans-Hudson Corporation (1994) 513 U.S. 30, 48 [ 130 L.Ed.2d 245 , 115 S.Ct. 394 ] (Hess).) The present suit for damages under section 1983 against the Los Angeles County Sheriff in his official capacity threatens neither the state’s sovereign dignity nor its treasury; hence, it should not be barred under Will . Moreover, as explained in part II, post, this conclusion is consistent with the high court’s most recent discussion of section 1983 state-agent immunity, in McMillian .

Today’s decision creates a direct conflict between this court and the federal court of appeals on the immunity of California sheriffs from liability on a federal cause of action. (See Brewster v. Shasta County (9th Cir. 2001) 275 F.3d 803 .) Both positions have some support in precedent and logic, suggesting that the anomaly of conflicting decisions is likely to endure until resolved by a higher authority. Although dependent on an understanding of sheriffs’ functions under state law, immunity from section 1983 liability is of course a federal question. (McMillian, supra, 520 U.S. at p. 786.) The conflict created today can, therefore, be resolved effectively only by the United States Supreme Court.

I

Will, supra, 491 U.S. 58 , in which the high court first articulated the distinction between state immunity and local government liability at issue here, establishes a close organic link between that distinction and the doctrine of state sovereign immunity. As the court explained, Congress enacted the 1871 Civil Rights Act, of which section 1983’s predecessor was a part, against a background of state immunity to damages suits under the Eleventh Amendment (for suits in federal courts) and common law sovereign immunity (for suits in state courts). From language, legislative history, and interpretive precedent the high court concluded that “Congress, in passing § 1983, had no intention to disturb the States’ Eleventh Amendment immunity” (Will, supra, *856 at p. 66 ) or to “disregard the well-established [common law] immunity of a State from being sued without its consent” (id. at p. 67). Moreover, because a suit against a state official in his or her official capacity is “a suit against the official’s office,” the Will court extended immunity under section 1983 to such actions, holding “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” (Will, supra, at p. 71 .)

Official-capacity suits seeking only injunctive relief against state officials, on the other hand, are not considered actions against the state under section 1983, as they likewise would not be under traditional sovereign immunity doctrine. (Will, supra, 491 U.S. at p. 71, fn. 10 .) Most pertinent here, the Will court explained that state-agent immunity under section 1983 is not inconsistent with the municipal liability previously recognized in Monell v. New York City Dept, of Social Services (1978) 436 U.S. 658 [ 56 L.Ed.2d 611 ] (Monell), because “by the time of the enactment of § 1983, municipalities no longer retained the sovereign immunity they had shared with the states.” (Will, supra, at p. 67, fn. 7 .) Just as Monell limited municipal liability to entities that “are not considered part of the State for Eleventh Amendment purposes” (Monell, supra, at p. 690, fn. 54 ), so the immunity holding in Will “does not cast any doubt on Monell , and applies only to States or governmental entities that are considered ‘arms of the State’ for Eleventh Amendment purposes.” (Will, supra, at p. 70 .)

The immunity recognized in Will thus bars only section 1983 suits seeking money damages from a state, which are barred under the Eleventh Amendment if brought in federal court. (See also Alden v. Maine (1999) 527 U.S. 706, 756-757 [ 144 L.Ed.2d 636 , 119 S.Ct. 2240 ] [sovereign immunity generally does not extend to municipalities, or to injunctive relief and personal-capacity actions against state officials, for in those cases “relief is not sought from the state treasury”].) Thus, in deciding whether a government official sued in his or her official capacity under section 1983 enjoys state-agent immunity, as in deciding directly under the Eleventh Amendment whether the office is an arm of the state, the court’s primary consideration should be whether or not the state is obligated to pay the office’s liabilities.

In Hess, supra, 513 U.S. 30 , in holding that the Port Authority of New York and New Jersey, an entity created by compact between those two states, was not an arm of either for Eleventh Amendment purposes, the high court relied primarily on the Port Authority’s financial independence, rather than on the states’ control or lack thereof over it. Although an examination of how the office is controlled can be helpful to the overall inquiry, “rendering control dispositive does not home in on the impetus for the Eleventh Amendment: the prevention of federal-court judgments that must be paid out of a State’s treasury.” (Hess, supra, at p. 48 .) The high court considered “the vulnerability *857 of the State’s purse [to be] the most salient factor in Eleventh Amendment determinations.” {Ibid, [citing extensive list of lower court decisions to same effect]; Regents of the Univ. of California v. Doe (1997) 519 U.S. 425, 429 [ 137 L.Ed.2d 55 , 117 S.Ct. 900 ] [11th Amend, immunity applies “ ‘when the action is in essence one for the recovery of money from the state’ ”]; Lake Country Estates, Inc. v. Tahoe Planning Agcy. (1979) 440 U.S. 391, 401 [ 59 L.Ed.2d 401 , 99 S.Ct. 1171 ] [“some agencies exercising state power have been permitted to invoke the Amendment in order to protect the state treasury from liability”]; Quern v. Jordan (1979) 440 U.S. 332, 338 [ 59 L.Ed.2d 358 , 99 S.Ct. 1139 ] [11th Amend, forbids “ ‘retroactive award which requires the payment of funds from the state treasury’ ”]; Streit v. County of Los Angeles (9th Cir. 2001) 236 F.3d 552, 567 [potential liability of state is “most important factor in identifying an arm of the state”].) Thus, in determining whether a California sheriff’s office is an arm of the state for Eleventh Amendment purposes (and therefore immune from section 1983 liability in state court, as well), we must look to whether a judgment against the sheriff’s office potentially threatens California’s treasury. An examination of the laws governing the Los Angeles Sheriff’s Department shows a judgment against it does not have that potential.

California law defines sheriffs as elected officers of the county. (Cal. Const., art. XI [Local Government], §§ 1, subd. (b), 4, subd. (c) [Legislature and county charters shall provide for county officers including “an elected county sheriff”]; Gov. Code, § 24000 [“The officers of a county are: ...(b) A sheriff”].) The Los Angeles County Charter (art. IV, § 12) similarly lists the sheriff as one of the “elective County officers.”

In addition, a California sheriff’s office is funded by the county, even as to enforcement of state criminal laws. (Gov. Code, §§ 25300 [county board of supervisors sets compensation of county officers and employees], 29430, 29435 [county required to appropriate special fund for sheriff’s law enforcement activities], 29601, subd. (b)(1) [sheriff’s expenses incurred in “the detection of crime” are county charges]; Los Angeles County Code, ch. 4.12 [board of supervisors sets budget for all departments and offices].)

Finally and most significantly, a California county must pay tort judgments against its sheriff personally for acts in the scope of his or her employment, as well as judgments against the sheriff’s department generally. (See Gov. Code, §§ 815.2 [public employer liable in respondeat superior for torts of employees], 970.8 [public entity required to make provision in its budget to pay judgments]; Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 717 [ 117 Cal.Rptr. 241 , 527 P.2d 865 ] [sheriff is county employee for purposes of Gov. Code, § 815.2].) Indeed, as noted earlier, the County concedes as much. While the state may help to fund certain activities of the sheriff’s department, *858 the parties have not cited, nor have I discovered, any provision of California law that would make the state legally responsible for a judgment against the Sheriff of Los Angeles County in his official capacity.

Viewing the “potential legal liability” of the state as “an indicator of the relationship between the State and its creation” (Regents of the Univ. of California v. Doe, supra, 519 U.S. at p. 431 ), California law thus clearly regards a sheriff’s office not as an arm of the state but, rather, as a department of the county government. The existence of some degree of state control over sheriffs should not change this assessment. The majority opinion relies on the general supervisory authority the California Attorney General enjoys over sheriffs (Cal. Const., art. V, § 13), which includes the power to appoint a person “to perform the duties of sheriff with respect to the investigation or detection of a particular crime” (Gov. Code, § 12561). How often, if ever, this theoretical power is exercised is unclear, but in the vast majority of cases sheriffs appear to retain wide autonomy (restrained of course by general state law) over formulation of law enforcement policies and their implementation.

In Roe v. County of Lake (N.D.Cal. 2000) 107 F.Supp.2d 1146, 1151 , footnote 13, the district court, expressing skepticism regarding the real degree of Attorney General supervision, noted that “[ajlthough county sheriffs have been frequently sued for civil rights violations in federal court, I have found no regulations which enable the Attorney General to prohibit or remedy such violations and have found no reported case in which the Attorney General has attempted to do so.” Nor, in this case, has the County directed us to any such regulations or instance of the Attorney General’s exercising his appointment authority under Government Code section 12561.

True, a county board of supervisors, while charged with “supervis[ing] the official conduct of all county officers,” is also enjoined not to “obstruct the investigative function of the sheriff.” (Gov. Code, § 25303.) But this provision simply shows that a California sheriff acts in some respects autonomously from the county board of supervisors; it does not logically make the sheriff a state agent. As explained in Brewster v. Shasta County, supra, 275 F.3d at page 810 , the restriction in Government Code section 25303 “is akin to a separation of powers provision, and as such has no obvious bearing on whether the sheriff should be understood to act for the state or the county when investigating crime within his county. Merely because a county official exercises certain functions independently of other political entities within the county does not mean that he does not act for the county.” A California sheriff, then, makes law enforcement policy for his or her own department, *859 which, though it operates outside direct county legislative control in some respects, is nonetheless part of the county government, both formally and financially, rather than an arm of the state. 1

“The purpose of a McMillian analysis is to cull from cases seeking a federal remedy for civil rights violations, those in which the remedy would impugn state sovereignty.” (Roe v. County of Lake, supra, 107 F.Supp.2d at p. 1151 .) As discussed above, California sheriffs are elective county officers, whose compensation and budgets are set by county boards of supervisors and whose tort judgments are county liabilities. Moreover, as a county officer, a California sheriff can be removed only at an election by the county voters or, during his or her term of office, by trial on an accusation returned by a county grand jury. (Gov. Code, § 3060; People v. Hulburt (1977) 75 Cal.App.3d 404, 409 [ 142 Cal.Rptr. 190 ].) To paraphrase the decision in Roe v. County of Lake, supra, at page 1152, “[t]he deterrent effect of paying any judgment plaintiff may obtain will be felt in [Los Angeles] County. If the public is dissatisfied with [the sheriff’s policies], he will either not be reelected by the voters of [Los Angeles] County or he will be impeached before a [Los Angeles] County grand jury.” In sum, the Los Angeles County Sheriff is not a designated state officer under the California Constitution, nor is he appointed by the state, nor removable by the state, nor subject to the immediate day-to-day supervision of any state agency or officer. Most important, a tort judgment against the Los Angeles County Sheriff in his personal or official capacity is a liability of the County, which funds the sheriff’s office, not of the state. Truly, “[i]t is hard to see how any of this will violate California’s sovereignty.” (Ibid.)

II

McMillian itself is not to the contrary. The role of sheriffs and other county officers vis-a-vis state government varies from state to state; thus “no inconsistency [is] created by court decisions that declare sheriffs to be county officers in one State, and not in another.” (McMillian, supra, 520 U.S. at p. 795 .) More significantly, the McMillian court, though it discussed at length aspects of state classification of and control over Alabama sheriffs, 2 relied crucially on Alabama law fixing any potential responsibility for a sheriff’s *860 torts on the state, which was immune under the state Constitution, rather than the county. (McMillian, supra, at p. 789 .) The McMillian court observed that the Alabama Constitution classified sheriffs as officers of the state’s executive department and gave the state authority to remove sheriffs by impeachment. (McMillian, supra, at pp. 787-788 .) “Critically for our case,” the high court continued, the Alabama Supreme Court, relying on those constitutional provisions, had held sheriffs were state officials for tort law purposes, and the counties were therefore not liable for their torts. (Id. at p. 789.)

The majority opinion argues that the McMillian court found “critical” to its reasoning not Alabama’s assignment of tort liability but, rather, “the fact that the Alabama Supreme Court had determined that the framers of the Alabama Constitution took steps to ensure that its sheriffs would be considered executive officers of the state.” (Maj. opn., ante, at p. 836.) That reading of McMillian may be facially plausible, but, unlike my own, it fails to harmonize McMillian with the high court’s previous holdings in Will, supra, 491 U.S. at page 70 , that state-agent immunity to section 1983 liability applies “only to States or governmental entities that are considered ‘arms of the State’ for Eleventh Amendment purposes,” and Hess, supra, 513 U.S. at page 48 , that the state’s potential legal liability for damages is “the most salient factor in Eleventh Amendment determinations.” As I read McMillian, supra, 520 U.S. at page 789 , the court concluded, from the fact Alabama- law classifies sheriffs, with respect to tort damages, as officials of the state, rather than the county, that an Alabama sheriff’s office is an “arm of the state” for sovereign immunity purposes under Hess. A section 1983 damages suit against an Alabama sheriff in his official capacity is therefore an action seeking money damages from the state, rather than from a county, and for that reason is barred under Will .

The same, of course, cannot be said of California sheriffs. When sheriffs are sued personally in tort, their counties, not the state, are liable in respondeat superior. (Gov. Code, § 815.2; Sullivan v. County of Los Angeles, supra, 12 Cal.3d at p. 717 .) Although section 1983 liability cannot be imposed on a public entity vicariously, but only for acts done pursuant to the entity’s own policies or customs (Monell, supra, 436 U.S. at p. 694 ), the counties’ vicarious liability for sheriffs’ state law torts is nonetheless “strong evidence” (McMillian, supra, 520 U.S. at p. 789 ) that California sheriffs ordinarily act as county, not state, agents. 3 Where, as here, a sheriff is sued in his official, not personal, capacity, any judgment for damages would be a *861 liability of his office, here the Los Angeles Sheriff’s Department. 4 Such a judgment would thus be a liability of the County, which establishes the budget of the sheriff’s department and must include therein the funds to pay judgments. (Gov. Code, §§ 970.8, 29601, subd. (b)(1); Los Angeles County Code, ch. 4.12.) Considering the liability factor held critical in McMillian , then, a section 1983 damages suit against a California sheriff in his official capacity is not an action seeking money damages from the state and is, therefore, not barred under Will .

Our decision in Pitts v. County of Kern, supra, 17 Cal.4th 340 , does not, in my view, compel a different result. To be sure, in holding that district attorneys act for the state when prosecuting and preparing to prosecute criminal violations of state law, the court relied in part on provisions of California law equally applicable to sheriffs. (See id. at pp. 356-358 [discussing Cal. Const., art. V, § 13 and Gov. Code, § 25303].) But the court expressly declined to consider the tort liability factor held critical in McMillian , reasoning that it was of little importance because public employees and their employers enjoy broad statutory immunity, under California law, for instituting or prosecuting an action. (Pitts v. County of Kern, supra, at pp. 360-361, fn. 7.)

Whether or not the analysis in Pitts v. County of Kern was adequate to explain why the lack of potential state liability was not relevant or determinative, it distinguishes the present case, for California public employees and entities enjoy no such blanket immunity for illegal arrests and searches, the area of activity at issue here. 5 District attorneys, moreover, have a particularly strong association with the direct exercise of the state’s power and are thus *862 further distinguished from sheriffs, in that they prosecute state criminal offenses in the name of, and as the legal representatives of, the People of the State of California. (See Pitts v. County of Kern, supra, 17 Cal.4th at p. 360 .) Nothing comparable to that direct link suggests a California sheriff acts as an arm of the state by apprehending criminals within his or her county.

Ill

The issue that primarily divides the majority opinion from this separate opinion and from the Ninth Circuit decisions in Brewster v. Shasta County, supra, 275 F.3d 803 , and Streit v. County of Los Angeles, supra, 236 F.3d 552 , is one of federal, rather than California, law. I believe that under the United States Supreme Court’s decisions establishing state sovereign immunity from section 1983 liability, the state’s potential legal liability for torts of a local government office is a critical factor in deciding whether or not that office is an arm of the state. (McMillian, supra, 520 U.S. at p. 789 ; Hess, supra, 513 U.S. at p. 48 ; Will, supra, 491 U.S. at p. 70 ; see also Brewster v. Shasta County, supra, 275 F.3d at p. 808 ; Streit v. County of Los Angeles, supra, 236 F.3d at p. 562 .) The majority opinion does not dispute that California law assigns potential liability for acts of a sheriff to the county rather than the state, but considers this fact irrelevant. (Maj. opn., ante, at p. 836.) Thus, the disputed point is the relevance and weight, under federal law, to be given a particular aspect of state law defining the relationship of California sheriffs to the state and county governments.

Until this question is resolved, federal district courts in California will be required to follow one rule, permitting section 1983 suits against sheriffs’ departments, while California superior courts will be required to follow the opposite rule, prohibiting such actions. I urge the United States Supreme Court to consider removing this anomaly by deciding the underlying issue of federal law.

Moreno, J., concurred.

Cf. Franklin v. Zamba (7th Cir. 1998) 150 F.3d 682, 685-686 (although Illinois sheriffs are not county agents for respondeat superior purposes, neither are they immune from § 1983 liability as state agents; sheriff is instead “an agent of the county sheriff’s department, an independently-elected office that is not subject to the control of the county in most respects”).

McMillian, supra, 520 U.S. at pages 787-788, 790-792. Alabama law on this point differs from that of California in several notable respects. Where Alabama classifies sheriffs as members of the state executive department (see id. at p. 787), California classifies them as elective county officers (Cal. Const., art. XI, §§ 1, subd. (b), 4, subd. (c); Gov. Code, § 24000). Where the Alabama Legislature sets its sheriffs’ salaries (McMillian, supra, at p. 791 ), *860 California delegates that choice to the county boards of supervisors (Gov. Code, § 25300). And where impeachment of an Alabama sheriff may be initiated by the Governor in that state’s Supreme Court (McMillian, supra, at p. 788 ), a California sheriff may be removed only on an accusation returned by a county grand jury (Gov. Code, § 3060).

The majority opinion suggests discussion of county liability under Government Code section 815.2 begs the question because if the sheriff were immune so would be his or her *861 public employer. (Maj. opn., ante, at p. 835.) I disagree. The question of which government entity would bear tort liability for acts of a particular government official is, in this context, a hypothetical one; it assumes the existence of an action in which the official is not immune from liability. But it does not make the assumption that the official is not immune in the action at bench.

See Will, supra, 491 U.S. at page 71 (official-capacity suit “is not a suit against the official but rather is a suit against the official’s office”). In- this case, plaintiffs redundantly sued both the County’s sheriff in his official capacity and its sheriff’s department. (Maj. opn., ante, at p. 828.)

The majority opinion (ante, at p. 836) cites Government Code sections 820.2 (discretionary acts) and 820.4 (law enforcement) as providing sheriffs potential immunity. But the former provision applies only to basic policy decisions committed to the legislative or executive branches of government (Barner v. Leeds (2000) 24 Cal.4th 676, 685 [ 102 Cal.Rptr.2d 97 , 13 P.3d 704 ]), while the latter statute provides immunity only for acts taken with “due care” and exempts “false arrest or false imprisonment.” It is also well established that “a governmental entity can be held vicariously liable when a police officer acting in the course and scope of employment uses excessive force or engages in assaultive conduct.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 215 [ 285 Cal.Rptr. 99 , 814 P.2d 1341 ].) The cited statutes thus indicate no broad immunity comparable to that relied upon in Pitts v. County of Kern, supra, 17 Cal.4th at pages 360-361, footnote 7, for unreasonable searches and seizures.