Petition for Writ of Certiorari — Bishop v. Gwaltney

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Text

No.

Supreme G

oe 1988

SEPH F. SPANIOL, JR.

FILED

JUL 26 1988

In The

SUPREME COURT OF THE UNITED [ATES “ERK

October term, 1988

JOSEPH F. SPANIOL, JR,

anil

MERLIN BISHOP, e¢ al.,

VS.

Petitioners,

GEORGE MICHAEL GWALTNEY, et al.,

Respondents.

On petition for Writ of Certiorari to the

California Supreme Court

PETITION FOR WRIT OF CERTIORARI

Thomas M. Burton

5820 Stoneridge Mall

Road

Pleasanton, CA 94566

(415) 484-3233

lam —— tll Ah st

QUESTIONS PRESENTED FOR REVIEW

1. Is a state court action brought under 42 U.S.C. § 1983

and the 14th Amendment against the California Highway Patrol for

its on-duty officer's murder of a female motorist, subject to

dismissal because the California Court of Appeal rules that a state

agency is not a "person" within the meaning of § 1983?

2. Isa § 1983 state court action against the California

Highway Patrol doomed to dismissal under Monell ‘s anti-agency

dictum, even though the state court did not consider petitioners’

claims that:

a) Monell is not binding in state court,

b) California has waived agency immunity by Gov. Code §

815.2 and Vehicle Code § 17001,

c) Both § 1988 and California common law allow state

substantive law to enhance the § 1983 federal remedy

in astate court action, and

d) Agency liability has been adequately plead to bring the

case under Brandon v. Holt in any event?

————

3. Does an action brought in state court directly under the

14th Amendment of the Constitution lie against the California

Highway Patrol via Bivens and Nevada v. Hall on the one hand,

and via numerous state and federal direct action cases on the other,

irrespective of the "personhood" and respondeat superior issues

incident to actions against government entities in federal court under

§ 1983?

4. Does the conviction in federal court of the state's police

officer for the criminal violation under 18 U.S.C. § 242 of a

motorist's civil rights by taking her life, preclusively compel by

"state action” the California Highway Patrol's liability under 42

U.S.C. § 1983 and the 14th Amendment for deprivation of the same

civil rights?

TABLE OF CONTENTS

I. THIBOUTOT IMPLICITLY ESTABLISHES THAT THE

QUESTION OF WHETHER OR NOT THE STATE IS A

‘PERSON' UNDER SECTION 1983 HAS NO RELEVANCE TO

A STATE COURT SECTION 1983 ACTION ............ 9

Il. GOVERNMENT ENTITY LIABILITY IN A STATE COURT

ACTION IS NOT PRECLUDED BY MONEI OR TUTTLE ...... 12

Ill. THE CHP IS DIRECTLY LIABLE FOR THE

CONSTITUTIONAL VIOLATIONS OF ITS AGENT

ON THE BASIS OF THE CONSTITUTION ITSELF

NOTWITHSTANDING THE EXISTENCE OR APPLICATION

OF §§1983 AND 1988

IV. THE STATE POLICE OFFICER'S CRIMINAL

CONVICTION UNDER 18 U.S.C. § 242 FOR VIOLATING THE

DECEDENT'S CIVIL RIGHTS BY TAKING HER LIFE

RENDERS THE STATE LIABLE AS A MATTER OF LAW

UNDER 42 U.S.C. § 1983 AND THE 14TH AMENDMENT FOR

VIOLATING THE DECEDENT'S CIVIL RIGHTS BY TAKING

HER LIFE.

TABLE OF AUTHORITIES CITED

Page

Brandon v. Holt, 469 U.S. 464 (1985)... .......20505. 15

Bell v. Hood 327 U.S. 678, 684 (1946) .........50005. 26

ae ut a Oey a a a aT 28

I a a eae Lio ao bbe ok be be ke nko Py

Bivens v. Six Unknown Fed. Narcotics Agents 403 U.S.

RE eras ee ey 6

0 FAR ee ae eee ee ee eee ee Pee ee 21

ane a ae aa is So Sa ae ow ew ees de 6 Ap ee 17

Brandon v. Holt 469 U.S. 464 (1985). ...........25505. 8

Brown v. Board of Education 347 U.S. 483 (1954) ........ 26

Burton v. Wilmington Parking Authority, 365 U.S. 715

RASS atk ol nia aid one a Ok Ee 8a O Al Oe 37

Duarte v. City of San Jose 100 C.A.3d 648, 657 (1980)...... 14

Edelman v. Jordan, 415 U.S. 651 (1974). ... .......... 10

Edwards v. California, 314 U.S. 160 (1941) ............ 33

Emich Motors Corp. v. General Motors Corp. 340 U.S.

IN oe ho aa ee wee

Ex Parte Young 209 U.S. 123 (1908)...........0.000- 26

Bx Parte Youns 200 U.S. 125. CISGS) . wc ee 10

First Lutheran Church v. Los Angeles County, 482 U.S._,

ee er Pee 26

Hopkins v. Clemson Agriculture College, 221 U.S. 636

eS oh bee So ak ee ee 7,27

Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239,

0 as we ek ee ee

7, 27

Se ee ee eae ee) eee ee ee ee 37

Lugar v. Edmondson Oil Co. 457 U.S. 922, 936 (1982) ..... 36

Maine v. Thiboutot 448 U.S. 1 (1980) ................ 6

Pe ee ee ee ee ee ee ee ee 10

Ee Sh bai, ADAG. ose wae OTs Le ca ce to hee

Re rire PR ate 8, 13, 14, 28

Monell v. Dept. of Soc. Serv. of City of N.Y., 436 U.S.

Monell v. Dept. of Social Services 436 U.S. 658 (1978) ..... 6

er 21

Monroe ...... a 23, 28

eee 24

Moor v. Alameda County 411 U.S. 693 (1973) ........... 8

Moor v. Alameda County, 411 U.S. 693 (1973) .......... 22

Nevada v. Hall, 440 U.S. 410 (1978) ................. 27

Oklahoma City v. Tuttle 471 U.S. 808 (1985) ............ 8

Otherson v. Department of Justice, I.N.S.., 711 F.2d 267

ee 35

Poindexter v. Greenhow 114 U.S. 270 (1884) ........... 7

Poindexter v. Greenhow, l]4 U.S. 270 (1884) ........... 27

Pye v, Bases epee ee areee)................. 11

Quern v. Jordan 440 U.S. 332, 337 (1978) ............. 10

a ye et 11

Shapiro v. Thompson 394 U.S. 618, 643 (1969) .......... 32

Strauss v. State 330 A.2d 646, 648 (N.J. 1974)........... 7

Sullivan v. Little Hunting Park 396 U.S.229 (1969) ........ 24

Co ee ee a ee eee re 11

United states v. Guest, 383 U.S. 745, 755 (1966) ....... 6, 33:

United States v. Gwaltney, 790 F.2d 1378 (9th Cir. 1986) .... 5

United States v. Price, 383 U.S. 787,794, n. 7 (1966)....... 35

Ward v. Love County 253 U.S. 17 (1920).............. 27

Ward v. Love County 253 U.S.17 (1920) .............. 7

White v. County of Orange, 166 C.A.3d 566 (1985) ........ 14

White v. County of Orange, 166 CA. 3d 566 (1985) ........ 8

White v. Greenhow 114 U.S. 307, 308 (1884) ........... 7

Williams v. Horvath, 16 C.3d 834 (1876) .............. 8

Williams v. Horvath, 16 C.3d 834 (1976) .............. 12

Youngstown Sheet & Tube Co. v. Sanger 343 U.S. 579 (

vii

OPINION BELOW

The Order of the California Supreme Court denying

petitioners’ petition for review was filed April 27, 1988. On

January 29, 1988 the California Court of Appeal for the Fourth

Appellate District affirmed the Order of the Superior Court of San

Bernardino County upholding the Attorney General's demurrer and

dismissing petitioners’ first amended complaint.!

JURISDICTION

The jurisdiction of the Supreme Court is invoked under 28

U.S.C. § 1254(1)

1 The parties to the action are Merlin Bishop and June

Bishop, as administrators of the estate of Robin Bishop, deceased,

and individually on their own behalf vs. George Michael Gwaltney,

James Burchett, Junior David Martin, Leonard De Groff,

individually and as officers of the California Highway Patrol, and

The Department Of The California Highway Patrol, a state agency,

and Does I through XX.

CONSTITUTIONAL AND STATUTORY PROVISIONS

1. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any perscn within its

jurisdiction the equal protection of the laws. Amendment XIV, § 1.

2. Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the District

of Columbia, subjects, or causes to be subjected, any citizen of the

United States or any other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party injured in any

action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

3. Whoever, under color of any law, statute, ordinance,

regulation, or custom, willfully subjects any inhabitant of any state,

territory, or district to the deprivation of any rights, privileges, or

immunities secured or protected by the Constitution or laws of the

United States, or to different punishments, pains, or penalties, on

account of such inhabitant being an alien, or by reason of his color,

or race, than are prescribed for the punishment of citizens, shall be

fined not more than $1000 or imprisoned not more than one year, or

both; and if death results shall be subject to imprisonment for any

term of years or for life. 18 U.S.C. § 242.

4. The jurisdiction in civil...matters conferred on the district

courts by the [Civil Rights Acts]...., for the protection of all persons

in the United States in their civil rights, and for their vindication,

shall be exercised and enforced in conformity with the laws of the

United States, so far as such laws are suitable to carry the same into

effect; but in all cases where they are not adapted to the object, or are

deficient in the provisions necessary to furnish suitable remedies....,

the common law, as modified and changed by the constitution and

statutes of the State wherein the court having jurisdiction of such

civil....cause is held, so far as the same is not inconsistent with the

Constitution and laws of the United States, shall be extended to and

govern the said courts in the trial and disposition of the cause....42

U.S.C. § 1988.

5. A Public entity is liable for injury proximately caused by

an act or omission of an employee of the public entity within the

scope of his employment if the act or omission would, apart from

this section, have given rise to a cause of action against that

employee or his personal representative. Gov. Code § 815.2.

6. A public entity is liable for death or injury to person or

property proximately caused by a negligent or wrongful act or

omission in the operation of any motor vehicle by an employee of

Raab

the public entity acting within the scope of his employment. Vehicie

Code § 17001.

STATEMENT OF THE CASE

Petitioners alleged that on the night of January 11, 1982 near

Barstow, California, George Michael Gwaltney, (Gwaltney), a

highway patrolman clothed, motorized and armed by the California

Highway Patrol (CHP), stopped Robin Bishop, a young attractive

female motorist driving her car alone on Interstate 15 from Los

Angeles to her home in Las Vegas. After handcuffing her,

Gwaltney put Robin in his patrol unit and transported her to an

isolated location. There, he raped Robin in the back seat of his patrol

car and afterward executed her with one shot to the back of the head.

Petitioners also alleged that Gwaltney's prurient propensities

were notorious among his colleagues and supervisors. His CHP

locker sported a plaque proclaiming an interest and expertise in

female genitalia and contained female undergarments and a card

collection of the anatomical measurements of Gwaltney's hatade

arrestees. Gwaltney on at least three prior occasions had fondled or

had sex with young female motorists he had stopped for alleged

infractions.

After two mistrials in San Bernardino County, Gwaltney

was finally convicted in federal court for depriving Robin Bishop of

her civil rights and sentenced to 90 years in federal prison. United

States v. Gwaltney, 790 F.2d 1378 (9th Cir. 1986) cert. den., 107

S.Ct. 1337 (1987).

Robins’ parents, having failed to comply with the 100 day

claims presentation requirement of the California Government Tort

Claims Act, filed their action under 42 U.S.C. §§ 1983, 1985,

1986, 1988 and the Fourth, Eighth and Fourteenth Amendment of

the United States Constitution against Gwaltney, his supervisors

and the CHP, charging cruel and unusual punishment, false

imprisonment, unlawful search and seizure, sex discrimination,

failure to protect, wrongful death, gross negligence, loss of

parenthood, and deprivation of due process of law and of equal

protection of the laws.2 The trial court's order of dismissal of all

causes of action for failure to state a claim was affirmed on appeal as

to all defendants except Gwaltney whose default was entered by the

Superior Court clerk. The California Supreme Court denied review.

Petitioners sought to evade the state claims presentation bar

by bringing a § 1983 civil rights action and to avoid the 11th

Amendment bar by filing the action in state court. The court of

appeal, however, relying on earlier California cases which

petitioners thought to be an unthinking vestige of pre-Monell § 1983

doctrine, held that a state agency such as the CHP was not a

2 The Court of Appeal’s assertion at p. 13a that ".....plaintiffs

entire complaint was predicated only on section 1983" justifying its

ignorging plaintiffs’ direct action constitutional arguments, is

erroneous. Paragraph 18, incorporated into every cause of action of

the First Amended Complaint, states: "As a direct and proximate

result of the above described unlawful, malicious, deliberate, and

reckless acts and omissions of defendants committed under color of

authority as patrolmen of the CHP and while acting in that capacity

Robin Bishop suffered grievious bodily harm and loss of life, all in

violation of her rights under the laws and Constitution of the United

States, and in particular the Fourth, Eighth and Fourteenth

Amendments thereof and 42 U.S.C. 3 1983 and 1985(2)(3)." In

addition, the body of the First, Second, Third, Fourth, Fifth,

Seventh, Ninth, and Tenth causes of action expressly mention that

defendants’ conduct violates the Constitution of the United States.

The court relied only on the caption of the First Amended Complaint

for its statement.

"person" under § 1983 amenable to suit in a state court action, and

that even were it such a "person", it would nevertheless not be liable

under the respondeat superior strictures of Monell v. Dept. of Social

Services 436 U.S. 658 (1978).

Petitioners argued that this Court had never held that a state

was not a "person" amenable to suit under § 1983 in a state court

action but had, to the contrary, strongly implied that it was. Maine

v. Thiboutot 448 U.S. 1 (1980),n. 7, and that in any event the state

was directly liable in its own courts for direct actions to redress

federal constitutional violations. Petitioners contended that "The

Fourteenth Amendment protects the individual! against state action,

not against wrongs done by individuals." United states v. Guest,

383 U.S. 745, 755 (1966),Bivens v. Six Unknown Fed. Narcotics

Agents 403 U.S. 388 (1871).3 Bivens had before been used in a

3 After Monroe v. Pape 365 U.S. 167 (1961) barred

municipal liability under § 1983, the Bivens direct action device

invoking the 14th Amendment was successfully used to attack

municipalities: Turpin v. Mailet, 579 F.2d 152 (2d. Cir.) (en banc),

vacated and remanded for consideration in light of Monell sub nom.

City of West Haven v. Turpin , 439 U.S. 974, 978 (1978),

modified on remand, 591 F.2d 426(2d. Cir. 1979) (en banc) (Police

brutality and illegal arrest alleged).; Cox v. Stanton, 529 F.2d 47

(4th Cir.1975); Davis v. Passman, 544 F.2d 865 (Sth Cir. 1977);

Gordon v. City of Warren, 579 _" 386 (6th Cir. 1978); Wiley v.

state action brought under the federal constitution, Strauss v. State

330 A.2d 646, 648 (N.J. 1974).

Aside from Bivens and long before it, petitioners argued,

this court had upheld actions both in federal and state courts brought

- directly under the constitution to grant redress, including damages:

White v. Greenhow 114 U.S. 307, 308 (1884) (state official's

seizure of property);Ward v. Love County 253 U.S.17 (1920)

(unconstitutional collection of taxes); Poindexter v. Greenhow 114

U.S. 270 (1884) (unlawful seizure of property by State officer);

Hopkins v. Clemson Agriculture College, 221 U.S. 636 (1911)

(taking of property without just compensation); Jowa-Des Moines

National Bank v. Bennett, 284 U.S. 239, 247 (1931) (County

officers collected tax in violation of Fourteenth Amendment).

Because § 1983 was procedural, not substantive law,

petitioners had also argued that they were not subject to the Monell

Memphis Police Dept. 548 F.2d 1247 (6th Cir. 1977); Amen v. City

of Dearborn, 532 F.2d 554 (6th Cir. 1976); McDonald v. Illinois,

557 F.2d 596 (7th Cir. 1977), cert denied, 434 U.S. 966 (1877);

Owen v. City of Independence, 421 F. Supp. 1110 (W.D. Mo.

1976), 560 F.2d 925 (8th Cir. 1977), 438 U.S. 902 (1978), 589

F.2d 335 (8th Cir. 1978). Section 1983: Sword and Shield,

American Bar Ass'n, p. 65. n. 15 (1983).

respondeat superior dictum but to the contrary, were entitled to rely

on the substantive statutory and case law of California which holds

that the agency employing an on-duty police officer is liable for

intentional wrongful acts. Gov. Code § 815.2, Motor Veh. Code §

17001, White v. County of Orange, 166 CA. 3d 566 (1985),

Williams v. Horvath, 16 C.3d 834 (1876).

Petitioners also argued, using Moor v. Alameda County 411

U.S. 693 (1973), that they were entitled under 42 U.S.C. § 1988 to

apply state substantive agency law to implicate the CHP, and that in

any event, they were not subject to the Monell agency dictum since

they were proceeding directly against the state under the 14th

amendment in its own courts rather than by way of § 1983 ina

federal court.

Petitioners claimed that in any event their case was more like

Brandon v. Holt 469 U.S. 464 (1985) than Oklahoma City v. Tuttle

471 U.S. 808 (1985) so that the CHP was both directly and

vicariously liable for its agent's on-duty torts of constitutional

dimension.

The California appeal court chose not to address the

numerous issues raised on appeal with respect to the state's direct

liability for federal constitutional violations, the use of § 1988 to

supply California common law to compensate for federal law

deficiency in protecting civil rights, the procedural-substantive law

dichotomy allowing the application of liability provisions of the state

tort claims act in a §1983 state court action, and the waiver of

agency immunity by Gov. Code § 815.2 and Vehicle Code § 17001.

Petitioners’ arguments, in part, tracked a seminal article,

"Sovereign Immunity and the Supremacy Clause: Damages Against

States In Their Own Courts For Constitutional Violations” by Louis

E. Wolcher, 69 Cal. L. Rev. 189 ( 1981). Yet the appeal court,

restricted itself simply to following prior California decisions

misconstruing the opinions of this court.

ARGUMENT

THIBOUTOT IMPLICITLY ESTABLISHES THAT THE

QUESTION OF WHETHER OR NOT THE STATE IS A

'PERSON' UNDER SECTION 1983 HAS NO

RELEVANCE TO A STATE COURT SECTION 1983

ACTION

The california court's recourse to the simplistic formula

derived from the § 1983 federal cases that a "state is not a person" is

inconsistent on its face because a state is a "person" for prospective

equitable relief under § 1983 even in federal court. The Eleventh

Amendment protects the state from retroactive monetary relief

whether or not it is a "person" in a § 1983 federal action, Ex Parte

Young 209 U.S. 123 (1908); Edelman v. Jordan, 415 U.S. 651

(1974), and Quern v. Jordan 440 U.S. 332, 337 (1978), but not

when the action is in a state court, Maine v. Thiboutot, supra.

In a state court § 1983 action, the state is liable for

retroactive relief at least to the extent of attorneys fees under § 1988

of the federal act because there is no state immunity to federal law.

If Maine were not a "person" under § 1983, it could not have been

liable for attorneys fees under § 1988 of the act. There is no

mention in the Thiboutot opinion of a contention that Maine was not

liable under § 1988 because it was not a "person" subject to the civil

rights act. Rather, the defense in Thiboutot was :

In the face of the plain language of section 1983 and

our consistent treatment of that provision, petitioners

nevertheless persist in suggesting that the phrase

‘and laws' should be read or limited to civil nghts

and equal protection laws. 448 U.S. at p. 6.

The simple defense in Thiboutot would have been that Maine was

not a ‘person’ under § 1983. Since such a defense was well known

to be synonymous with Eleventh Amendment immunity, itself

having no place in a state court action, the defendants in Thiboutot

were relegated to contending that other language in § 1983 precluded

| using the Civil Rights Act to attack federal Social Security statutes

bearing no ostensible relation to civil rights. Aside from the

footnote dictum, the total absence from Thiboutot of any discussion

of the state's "personhood" shows that it is no issue in a state court

action. The federal court cases to which the California court of

appeal points via the prior California case of Pyne v. Meese 172

CA.3d 392 (1985) are thus unimportant in the wake of Thiboutot.

There is an obvious and insupportable inconsistency

between this Court's ruling in Monell that the authors of § 1983

intended cities to be subject to suit as "persons" under § 1983 and

the California court's conclusion that states are somehow not

"persons" under § 1983. There is no apparent distinction between

characterizing municipalities and other governmental subdivisions as

“persons” subject to § 1983 jurisdiction, but not states, except alone

for the Eleventh Amendment's protection of states.

The majority's rejection in Quern of Justice Brennan's

cogent argument that § 1983's authors intended states to be persons

under § 1983 was simply the majority's obedience to the supremacy

of the Eleventh Amendment's immunity over a federal statute giving

no direct signal of an intention to abrogate the constitutional

protection. As seems abundantly clear from this Court's opinions,

when a State is the defendant in a § 1983 action in federal court, the

focus is not "personhood" but immunity. Accordingly, the appellate

court grievously erred in concluding that the CHP was not amenable

to suit in California's courts because it was not a "person " under §

1983 of the Civil Rights Act.

GOVERNMENT ENTITY LIABILITY IN A STATE

OR TUTTLE

The California court of appeal thought Monell v. Dept. of

Soc. Serv. of City of N.Y., 436 U.S. 658 (1978) an absolute bar to

petitioners’ attack against the CHP for respondeat superior liability,

and totally ignored the California Supreme Court's application of

substantive state tort claims act liability to enhance the § 1983

} COURT ACTION IS NOT PRECLUDED BY MONELL

remedy when the action was brought in state court. Williams v.

Horvath, 16 C.3d 834 (1976).

In Williams, the court held that § 1983 overrode the claims

presentation requirements of the state tort claims act, but did not

preclude application of the indemnification provisions of the state

tort claims act in a state court action founded upon § 1983:

...entirely different considerations prevail in

determining application of the claim requirement and

the indemnification provisions of the Tort Claims

Act. With regard to the claim section, the question is

the extent to which state procedural obstacles may be

invoked to obstruct the rights of plaintiffs relying on

federal law. On the issue of indemnification,

however, there can be no charge that these

provisions obstruct invocation of the federal right; on

the contrary, they enhance that right by insuring that

the individual employee is able to meet his

responsibilities. 16 C.3d at p. 847.

Similarly, petitioners’ state court § 1983 action is not precluded by

Monell from invoking against the CHP the respondeat superior

provisions of the state tort claims act to enhance the federal remedy

for violation of Robin Bishop's civil rights.

In addition to Gov. Code § 815.2's respondeat superior

provisions, Vehicle Code § 17001 also renders the CHP vicariously

liable for its agent's conduct using his patrol car to confian, rape and

transport Robin to a place where he could conveniently kill her:

A public entity is liable for death or injury to person

or property proximately caused by a negligent or

any motor vehicle by an employee of the public

entity acting within the scope of his employment.

(emphasis added)

The vehicle need not be moving, but only in a "state of being at

work" to impose liability. Duarte v. City of San Jose 100 C.A.3d

648, 657 (1980).

Finally, in White v. County of Orange, 166 C.A.3d 566

)

} wrongful act or omission in the operation of

)

;

taal

;

}

(1985) the employing entity was liable for a deputy sheriff's

confining a female motorist in his patrol car, threatening to rape her:

The use of authority is incidental to the duties of a police

officer. The County enjoys tremendous benefits from the

public's respect for that authority. Therefore, it must suffer

the consequences when the authority is abused. 166 C.A.3d

at p. 572.

Both by statute (Gov. Code § 815.2, Veh. Code § 17001)

and by case law, White v. County of Orange, supra, California has

shown no inclination to accept the Monell agency restrictions, but to

the contrary, has adopted the more rational view that the government

Goes not deserve more protection for its common law torts than for

its constitutional torts. The California appeal court mistakenly

thought it was sitting as a federal court merely because petitioners’

action sounded in § 1983 and the 14th Amendment. Accordingly, it

considered itself constrained by Monell when it was not.

Since the Fourteenth Amendment and § 1983 reach only

"state action", not private conduct, the state employer is implicated

by definition, else would its conduct not be unconstitutional in the

first place:

If the doctrine of respondeat superior would impose

liability on the city in an ordinary tort case, a fortiori,

that doctrine must apply to the City in a §1983 case.

....When a police officer is engaged in the

performance of his official duties, he is entrusted

with civic responsibilities of the highest order. His

mission is to protect the life, the liberty, and the

property of the citizenry. If he violates the Federal

Constitution while he is performing that mission I

believe that federal law provides the citizen with a

remedy against his employer as well as a remedy

against him as an individual. .....if Congress

intended to impose liability on municipal

corporations, it must have intended to make them

responsible for at least some of the conduct of their

agents. 471 U.S. 839, 834, 835 (Stevens dissent)

Here, Officer Gwaltney's conduct was the most grievous

and shocking imaginable for a law enforcement officer. Not only is

the CHP's liability not precluded by Monell and Tuttle, it is

compelled by Brandon v. Holt, 469 U.S. 464 (1985):

[Petitioners], who were seventeen years of age,

drove to the Memphis Hunt and Polo Club while on

a date and parked in a dark and secluded driveway

area...After approximately thirty minutes had

elapsed, a Chevrolet pickup truck entered the

driveway where [petitioners] were parked....The

driver of the truck identified himself to [petitioners]

as a police officer and showed them an official police

identification card bearing the name and photograph

of Robert J. Allen....Mr. Allen ordered Mr. Muse to

step out of the car. After briefly questioning him,

Officer Allen maliciously, and without provocation,

struck Mr. muse in the neck and head with his fist

and then stabbed and cut Muse on the neck and ear

with a knife. As Officer Allen tried to break into the

car where [petitioner] Elizabeth A. Brandon was

seated, Mr. Muse jumped into the driver's side of the

car and quickly drove away. Officer Allen fired one

shot at the escaping vehicle from his police revolver.

The bullet shattered the front window on the driver's

side of the car. Officer Allen followed plaintiffs in a

high speed chase which ended at St. Joseph's

Hospital East, where plaintiffs sought medical care

and assistance and reported the unprovoked attack

upon them by Officer Allen.

This Court held:

In at least three recent cases arising under § 1983, we

have plainly implied that a judgment against a public

servant "in his official capacity" imposes liability on

the entity that he represents provided, of course, the

public entity received notice and an opportunity to

respond. We now make that point explicitly. 469

U.S. at pp. 471-472.

2 1

ill

However notorious officer Allen's reputation in B: andon among the

officers of the precinct, his recently installed supervisor had no

actual knowledge of Allen's propensities or disciplinary record. 469

U.S. at p. 467. Because of the code of silence, few complaints

were ever filed by police personnel. 469 U.S. at p. 467. Both the

police supervisor and the governmental entity employing Allen,

however, were liable since the supervisor was sued in his official

Capacity as a public servant.

Petitioners alleged that Officer Gwaltney's prurient

propensities were not only notorious but outlandish:

a. George Michael Gwaltney had stopped a twenty-

three-year old female motorist for having a loud

muffler but did not issue her a ticket, after which the

motorist had sexual relations with Gwaltney in the

back of his patrol car several times in the immediate

vicinity where Robin Bishop's body was found.

b. In march 1979, Gwaltney stopped a female

, rrr frTrT7T.yTrT{ TT, VT VR VV ww VW Ww

motorist and her boyfriend for "weaving" on I-15.

After putting the boyfriend in the patrol unit out of

view, Officer Gwaltney searched the female motorist

three separate times in the area of her breasts and

crotch, once after handcuffing her. The woman

motorist was wearing a tight fitting tee shirt and blue

jeans and it was obvious without a physical search

that she carried no weapons. The frequency and

lingering nature of each of the three searches

indicated that their objective was sexual, not routine.

Gwaltney did not search the boyfriend for weapons.

c. In February 1980, Officer Gwaltney gave another

twenty-three-year-old woman a speeding ticket. He

later appeared at her place of employment where he

made vulgar sexual innuendoes toward her and stated

that he would have the traffic charges against her

dismissed, which he later did.

d. Officer Gwaltney kept file cards on women in

)

}

whom he had sexual interest. Two such cards were

found in his California Highway Patrol locker, one

of them with Robin Bishop's name on it.

e. Officer Gwaltney's locker at the California

Highway Patrol locker in Barstow, California, had a

plaque proclaiming his interest in female genitalia and

the locker itself contained female undergarments and

nightgowns. (First Amended Complaint, 4 15(a-g).)

Petitioners also alleged that Gwaltney's antics and attitude were

known to his supervisor and encouraged as part of a pattern and

practice of play-boy tolerance:

At all times material, the defendant James Burchett

(Burchett) was a police officer of the CHP assigned

as Captain of the Barstow Substation, having direct

supervision of the defendant Gwaltney and acting as

the agent and servant of the CHP in the course and

scope of his employment, Burchett either knew or

aie

County's investigation into his culpability for killing

Robin Bishop...... The department of the California

Highway Pairol is an agency of the State of

California charged with the safey of motorists on

California Highways. It clothes its officers with the

power to compel and the means to kill, but has a

policy, pattern and practice of allowing the abuse of

that power by some of its male officers in the

Barstow area, including the defendant Gwaltney

herein, for personal sexual gratification, so long as

those officers meet their traffic citation quotas and

should have known of Gwaltney's prurient interest

in sex and of his pattern and practice of exacting

sexual tribute from female motorists, but both

accommodated Gwaltney's propensities and took no

action to curb such conduct or to restrict Gwaltney's

assignments from dealing with the female motoring

public. Burchett warned Gwaltney of a weapons -

confiscation conducted as part of San Bernardino

3 generally comply with the department's regulations.

(First Amended Complaint, Jf 5, 8).

If petitioners are successful in proving liability against Gwaltney's

supervisor, Burchett, Gwaltney himself having defaulted,

petitioners need then only prove up a case of damages. Once done,

petitioners presumably, under Brandon v. Holt, are entitled to

collect the judgment against the CHP:

Part II of the Court's opinion announces the novel

- proposition that in suing a public official under 42

U.S.C. § 1983, a money judgment against a public

official ‘in his official capacity’ is collectable against

a public entity that employs the official. This

startling doctrine - that a plaintiff may name as

defendant only an agent, but nonetheless succeed in

imposing damages on the principal who was not

named - would seem to be at odds with the most

rudimentary notions of pleading, parties and of due

process. 469 U.S. at pp. 475-476, (Rehnquist, J.,

dissenting).

This Court held that because Monell came down after Brandon was

filed and before it was decided, plaintiffs there could simply amend

their complaint, but that such a formalism was not necessary as the

City would have to respond in damages in any event for its agent's

conduct in his official capacity. 469 U.S. at pp. 475-476.

All that the plaintiffs needed to prove in Brandon was that

(1) the city's police officer viciously assaulted them and (2), the

officer had a history of violent and irregular behavior that was well

known within the department, 469 U.S. at p. 464. Again, Justice

Rehnquist, in dissent, recognized that the majority had held that

"naming an official as a defendant ' in his official capacity’ is

sufficient to impose liability upon a municipal corporation not named

as defendant....." 469 U.S. at p. 477.

Since Brandon was decided in light of Monell, under federal

law and in federal court, where a single officer's conduct is

notorious and egregious, agency "policies" which keep the conduct

from surfacing, establish entity liability, even when a newly

installed supervisor in his official capacity and for whose oversight

the city is liable, is ignorant of the subordinate officer's offending

EE ee

conduct. 469 U.S. at p. 467.

Petitioners met their burden of pleading entity liability under

Brandon. They are thus entitled to prove out their allegations as the

plaintiffs in Brandon were allowed to do. The distinction between

Brandon and Tuttle is that in Tuttle, the jury was allowed to infer

entity liability from a single incident of misconduct without the

benefit of additional evidence, 471 U.S. at p. 821. In Brandon, the

jury had before it several incidences of officer misconduct known to

the department but which department procedures obscured from the

supervisor. Such procedures triggered entity liability by virtue of the

fact that the supervisor was unknowing when he should not have

been, 469 U.S. at p. 467.

Finally, Moor v. Alameda County, 411 U.S. 693 (1973)

stands for the principle that § 1988 allows the application of

California respondeat superior law where the laws of the United

States are deficient to afford redress for the unconstitutional

deprivation of civil rights:

...{B]ut in all cases where [laws of the United States]

_are not adapted to the object, are deficient in the

rn nn nn Se ee a a

provisions necessary to furnish suitable

remedies....., the common law, as modified and

changed by the constitution and statutes of the State

wherein the court having jurisdiction of such

civil...cause is held, so far as the same is not

inconsistent with the Constitution and laws of the

United States, shall be extended to and govern the

said courts in the trial and disposition of the

cause....42 U.S.C. § 1988.

Since Monroe at that time precluded entity liability, plaintiff

in Moor argued that state respondeat superior law should be applied

to supply the federal law deficiency. This Court held, however, that

since Monroe expressly protected municipalities from liability,

plaintiffs could not use state law to contravene federal law which the

statute prevented as compared with furnishing suitable state law —

remedies to supplement deficient federal law, which the statute

In effect, petitioners are arguing that their particular

‘ 5

actions may be properly brought against this County

on the basis of § 1983. But whatever the factual ©

premises of Monroe, we find the construction which

petitioners seek to impose upon § 1983 concerning

the status of municipalities as "persons" to be simply

untenable. 411 U.S. at p. 707.

The construction of § 1983 concerning the status of

municipalities as "persons" is no longer untenable, but, to the exact

contrary, such construction of the statute is now officially approved

by Monell. Since by Monell, municipal immunity to a § 1983 action

has disappeared, Moor has no further force to preclude the

application, pursuant to § 1988, of Gov. Code § 815.2 and Vehicle

Code § 17001 in order to establish respondeat superior liability

against the CHP in state court. Monell’s respondeat superior

strictures are, after all, only policy nostrums, not even an attempted

Statutory construction of 1871 legislation. As such, they do not

preclude the application in state court by § 1988 of California

common law agency principles to enhance the federal remedy

provided by § 1983.

In Sullivan v. Little Hunting Park 396 U.S.229 (1969), a

racial discrimination case brought under § 1982, This court

described the great breadth of § 1988:

[W]here federally protected rights have been

invaded, it has been the rule from the beginning that

courts will be alert to adjust their remedies so as to

grant the necessary relief. And it is also well

settled that where legal rights have been

invaded, and a federal statute provides for a

general right to sue for such invasion,

federal courts may use any available remedy

to make good the wrongs done.

The existence of the command of the statutory right

implies the existence of all necessary and appropriate

remedies..

A disregard of the command of the statute is a

wrongful act, and where it results in damage

to one of the class for whose especial benefit

the statute was enacted, the right to recover

the damages from the party in default is

implied....

This means, as we read in § 1988, that both federal

and state rules on damages may be utilized,

whichever better serves the policies

expressed in the federal statutes.....The rule

of damages, whether drawn from federal or state

sources, is a federal rule responsive to the need

whenever a federal right is impaired. 396 U.S. at p.

239, 240 (emphasis added)

The appeal court's artificial and facile arguments to support

its decision that petitioners have no remedy under the federal

constitution in state court for its most flagrant infraction, are out of

harmony with the spirit and purpose of § 1983. Section 1983 is

only a procedural remedy, not a substartive statute. It provides a

vehicle for relief and recovery for violations of the federal

constitution. It is the door both to federal and state courts for that

purpose. Both Congress and the California Supreme Court intend

the remedies thereby available to be plenary, not parsimonious. No

more fundamental rights secured by the Constitution exist than those

brutally taken from Robin and her parents by the State in this case.

Section 1988, therefore, is aptly suited to incorporate Gov. Code §

815.2 and Vehicle Code § 17001 in order to make the CHP liable.

III

THE CHP IS DIRECTLY LIABLE FOR THE

CONSTITUTIONAL VIOLATIONS OF ITS AGENT

ON THE BASIS OF THE CONSTITUTION ITSELF

NOTWITHSTANDING THE EXISTENCE OR

APPLICATION OF §§1983 AND 1988

Many of this Court's landmark constitutional cases arose not

under § 1983, but under the constitution itself. Brown v. Board of

Education 347 U.S. 483 (1954); Youngstown Sheet & Tube Co. v.

Sanger 343 U.S. 579 ( 1952); Ex Parte Young 209 U.S. 123

(1908); Bell v. Hood 327 U.S. 678, 684 (1946); Wolscher, supra,

at pp. 272, 285. See also First Lutheran Church v. Los Angeles

County, 482 U.S.__, 96 L.Ed.2d 250, 264 (1987) ("..claims for

just compensation are grounded in the Constitution itself...Statutory

recognition was not necessary. A promise to pay was not

necessary. Such a promise was implied because of the duty

imposed by the Amendment. The suits were thus founded

upon the Constitution of the United States." (emphasis (bold) added

and (italics) in the original)

Similarly, state court actions have long permitted direct

attack against Governmental entities for constitutional violations.

Ward v. Love County 253 U.S. 17 ( 1920); Poindexter v.

Greenhow, 114 U.S. 270 ( 1884); Hopkins v. Clemson Agriculture

College, 221 U.S. 636 (1911); Jowa-Des moines National Bank v.

Bennett, 284 U.S. 239, 247 (1931). |

This Court in Nevada v. Hall, 440 U.S. 410 (1978), having

refused to protect Nevada's treasury from a Californian's tort

damage claim, should no less refuse to protect California's treasury

from a Nevada citizen's claim for the far more serious deprivation of

constitutionally protected rights.

Article ITI, § 5 of the California Constitution allows suits

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against California brought in such courts as shall be directed by law.

The California Tort Claims act is no shield to such suits since by

federal common law its claims presentation provisions do not apply

to a § 1983 action, and the tort claims act on its face applies solely to

torts, not to actions founded expressly and directly upon violations

of the federal constitution itself.

This Court has created another avenue of direct action for

constitutional violations, Bivens v. Six Unknown Fed. Narcotics

Agents, 403 U.S. 388 (1971). Bivens allowed direct action

founded upon constituticnal violations where § 1983 was not

available because the suit was for damages against federal narcotics

agents not operating by way of "state action". The federal court's

jurisdiction was thus predicated not on § 1983 but on the general

federal jurisdiction provisions of 21 U.S.C. § 1331. Thereafter the

Bivens rationale was used successfully to obtain redress directly

under the Fourteenth Amendment against municipalities which

Monroe held were not "persons" within § 1983.

Since Monell overruled Monroe, there has been less need to

employ the Bivens direct action rationale, but its rationale should be

available to reach entities that are hiding behind the concepts of §

Pd’, ‘9 - Pa = *

1983 "nonperson" status or the respondeat superior protection of

Monell. It is not correct to say that Bivens only reaches federal

officers, not state agencies themselves:

This view is flawed, however, because it loses sight

of the reason why the Bivens Court decided to imply

a constitutional remedy in the first place. The Court

recognized that there was something uniquely

harmful about constitutional violations that was not

adequately addressed by existing laws governing

private relationships. And the extra something is the

defendant officer's status as an arm of government

that is forbidden by a written constitution from

performing certain conduct that private law may

inadequately police or even condone. In short,

the Bivens remedy holds the defendant

officer liable as a surrogate for the

government. He is liable precisely because

the government, through him, has violated

constitutional rights. When the surrogate is

EEE EEE EE E_E_E_AEAE_ER_eEA-*

eliminated and the government, such as a

state is sued directly, on its most basic

level Bivens analysis yields the same result

as when an officer is sued. This is because

existing remedial law, in the form of the section 1983

cause of action, is inadequate to answer all our

constitutional concerns. Accordingly, judicial

implication of a remedy is warranted -- “appropriate”

in the vernacular of Bivens--unless there is some

good reason not to do so. Wolscher, supra, at p.

286. (emphasis added)

The evil conduct of the State's officer in this case justifies

extending the Bivens model to the state itself, as urged by Wolscher.

The practice of direct action has been so widespread, that there is no

reason why it is not appropriate in this case, especially if, as the

court of appeal held, § 1983 was not available to petitioners because

California was not.a "person" under the Civil Rights Act, and that

even if it were, the CHP would not be amenable to damages for the

redress of its agent's constitutional violations because of the

’ ” Py

respondeat superior dictum of Monell. Wolscher advocates

application of the Bivens model to overcome just such casuistic

evasions:

...[MJany state and lower federal courts, even before

Davis and Carlson, used the theory of Bivens to

imply constitutionally appropriate remedies against

local governments who acted contrary to the

fourteenth amendment.

Indeed, the Supreme Court's own cases, prior to

Bivens, that upheld the power of federal courts to

award injunctions and damages against state officers

acting unconstitutionally rested ultimately on a test of

appropriateness rather than strict necessity. The

plaintiffs in these cases might have been referred to

State courts and the state tort law for relief, with

Supreme Court review to assure that it was given.

Instead the Court gave the broadest possible

interpretation to 28 U.S.C. section 1331 and to the

concept of state action, with the result that federal

courts assumed practical suzerainty over the

unconstitutional acts of state officers even though

this was not, in theory, strictly necessary to protect

the plaintiff's rights.

Given this background and the policies voiced in

Davis and Carlson, it is difficult to see why the basis

of a Bivens cause of action does not extend to

fourteenth amendment rights and to other justiciable

rights against the states created by the Constitution .

It may be that in a given case a particular claim

against a particular defendant ought not to produce

liability. But this goes to the question of what

immunities are available as defenses to an otherwise

appropriate Bivens cause of action, or at best to the

existence on the facts of that case of special factors

counselling hesitation in the judicial creation of the

remedy. It does not undercut the applicability of

Bivens as a general matter to constitutional

provisions restraining state action.

....[J]ust as Bivens held that Congress’ unexercised

Dsenaaietlenepeerandisbindeall A on BoAMs Wo wet de 6 ‘sesieriientians =

BE PRT TEL ETRE LEP EES LENE ICAE CE LIEN S EET Oe a -

legislative powers do not automatically foreclose a

constitutionally implied damage remedy against

federal officers, so too the mere existence of

Congress’ powers under section five of the

fourteenth amendment has never been thought

sufficient to preempt the power of courts to protect

fourteenth amendment rights by appropriate remedies.

Were the rule otherwise, much of what the Court has

done in the field of constitutional rights against the

States would be without legitimacy: The lower

federal courts’ jurisdiction in many of its

most important cases was invoked on the

ground the plaintiffs' claims arose under

the constitution, not under section 1983 or

any other congressional enactment. Wolscher

at pp. 286-287. (emphasis added)

The CHP is also directly liable for its agent's depriving

Robin Bishop of the privileges and immunities insured by the

Fourteenth Amendment. Robin was returning through California to

is a "person" under § 1983 and whether or not a municipality is

liable under a § 1983 action in federal court by respondeat superior.

Petitioners are entitled to direct action constitutional redress

in the courts of California and in this federal court for the brutal rape

and murder of their daughter by the state's on-duty officer charged

with public safety on the federal interstate highways. He was armed

with the state's authority to stop a motorist and the power to kill her,

and he used it. By its agent's using authority expressly conferred

by California, the state is liable to Robin's family for depriving

Robin of her most fundamental civil rights.

THE STATE POLICE OFFICER'S CRIMINAL

CONVICTION UNDER 18 U.S.C. § 242 FOR

VIOLATING THE DECEDENT'S CIVIL RIGHTS BY

TAKING HER LIFE RENDERS THE STATE LIABLE

AS A MATTER OF LAW UNDER 42 U.S.C. § 1983

AND THE 14TH AMENDMENT FOR VIOLATING THE

her home in Nevada when she was stopped, raped and killed by an

on-duty officer of the state in full regalia, who had to have his

uniform cleaned the day after the murder. The right to interstate

travel is "a virtually unconditional personal right guaranteed by the

Constitution to us all", and its violation is a deprivation of due

process. Shapiro v. Thompson 394 U.S. 618, 643 (1969).

Remedies for the interruption of interstate travel have also

been based on the denial of the equal protection clause of the

Fourteenth Amendment:

It is a commonplace that rights under the Equal

Protection Clause itself arise only where there has

been involvement of the State or of one acting under

the color of its authority. The Equal Protection

Clause ‘does not....add anything to the rights which

one citizen has under the Constitution against

another.'..... The Fourteenth Amendment protects

the individual against state action, not against wrongs

done by individuals.’ This has been the view of the

Court from the beginning. It remains the Court's

view today. United States v. Guest, 383 U.S. 745,

755 (1966)

" Edwards v. California, 314 U.S. 160 (1941), defendant was

prosecuted for bringing into California an indigent in violation of

state law. This Court held that the state law violated both the

commerce clause and the privileges and immunities clause of the

federal constitution:

So, when the Fourteenth Amendment was adopied in

1868, it had been squarely and authoritatively settled

that the right to move freely from State to State was a

right of national citizenship. As such it was

protected by the privileges and immunities clause of

the fourteenth Amendment against state interference.

314 US. at p. 178, 179.

Where the state's officer, as here, interfered with Robin's right of

national citizenship protected by the Fourteenth Amendment, the

state is directly liable for the interference, whether or not California

DECEDENT'S CIVIL RIGHTS BY TAKING HER LIFE.

The state's officer could not have been convicted for the

criminal deprivation of Robin Bishop's civil rights by taking her life

absent a finding of "state action". 42 U.S.C. § 1983 is the civil

counterpart of 18 U.S.C. § 242 so that the “state action" requisites

are the same:

"Under color" of law means the same thing of § 242

that it does in the civil counterpart to § 242, 42

U.S.C. § 1983..United States v. Price, 383 U.S.

787,794, n. 7 (1966).

Gwaltney's conviction for acting under "color of law” in killing

Robin Bishop, and which constitutes "state action", makes him a

state actor, a status precluding civil court review. Emich Motors

Corp. v. General Motors Corp. 340 U.S. 558,569 (1951); Otherson

v. Department of Justice, 1.N.S..,711 F.2d 267 (D.C. Cir. 1983)

Inasmuch as his status as a state actor is a prerequisite to criminal

conviction not subject to review by civil courts, it is binding upon

reflect a two-part approach to this question of "fair

attribution." First, the deprivation must be

caused ..... by a person for whom the State

is responsible.....Second, the party charged

with the deprivation must be a person who

may fairly be said to be a state actor. This

may be because he is a state official...or

because his conduct is otherwise chargeable

to the State. Without a limit such as this, private

parties could face constitutional litigation whenever

they seek to rely on some state rule governing their

interactions with the community surrounding them.

Lugar v. Edmondson Oil Co. 457 U.S. 922, 936

(1982) (emphasis added)

In Lugar, allegations of civil rights deprivations were upheld against

private parties for using presumptively valid prejudgment attachment

procedures allegedly defective under the due process clause of the

constitution. In the case at bar, however, the status of Gwaltney as

a state actor because he is a state official for whom the state is

the courts in this action for civil remedies.

The same requisite exists, as well, in actions founded upon

the 14th Amendment and 42 U.S.C. § 1983, as is this one:

As a matter of substantive constitutional law the state-

action requirement reflects judicial recognition of the

fact that "most rights secured by the Constitution are

protected only against infringement by

governments,”....In 1883, this Court...affirmed the

essential dichotomy set forth in [the Fourteenth]

Amendment between deprivation by the State,

subject to scrutiny under its provisions, and private

conduct, ‘however discriminatory or wrongful,’

against which the Fourteenth Amendment offers no

shield.' Careful adherence to the "state action”

requirement preserves an area of individual freedom

by limiting the reach of federal law...

Our cases have accordingly insisted that the

conduct allegedly causing the deprivation of a federal

right be fairly attributable to the State. These cases

FILED

Jan 2 7 1988

Court of Appeal

COURT OF APPEAL, FOURTH DISTRICT

DIVISION TWO

STATE OF CALIFORNIA

MERLIN BISHOP, ET AL.

Plainuffs and Appellants, E003i61

v. (Super. Ct. No. BCV

GEORGE MICHAEL GWALTNEY, et al., BCV 1150)

Defendants and Respondents. OPINION

APPEAL from the Superior Court of San Bernardino

responsible is not, in the light of his criminal conviction for

employing state action to take the life of Robin Bishop, open to

question. Were he not so, he could not have been convicted and

sentence to prison for 90 years. Were he not so, he could not be

pursued in this action under § 1983 and the Fourteenth Amendment.

While the reach of "state action" has been fairly broad,

Lugar, supra, and Burton v. Wilmington Parking Authority, 365

U.S. 715 (1961), it is abundantly clear in this case that Gwaltney

was a State actor using the power and prerogative of his position to

deprive a woman, solely because she was a woman, of the ultimate

civil right, her life. Since only a police officer by virtue of his status

as a government Official is so favorably situated as to be enabled and

empowered to stop, frisk, or assume possession of any woman of

his choice merely upon a colorable infraction of the traffic laws, §

1983 and the 14th Amendment were designed to, and must, provide

redress and deterrence beyond the person of the individual officer:

Of greatest importance, however, is the

nature of the wrong for which § 1983 provides a

remedy. The Act was primarily designed to provide

a remedy for violations of the United States

constitution - wrongs of the most serious kind. As

the Court recognizes, the individual officer in this

Case was engaged in "unconstitutional activity.” But

the conduct of an individual can be characterized as

"unconstitutional" only if it is attributed to his

employer. The Fourteenth Amendment does not

have any application to purely private conduct.

Unless an individual officer acts under color of

official authority, § 1983 does not authorized any

recovery against him. But if his relationship with his

employer makes it appropriate to treat his conduct as

State action for purposes of constitutional analysis,

surely that relationship equally justifies the

application of normal principles of tort law for the

purpose of allocating responsibility for the wrongful

state action. Oklahoma City v. Tuttle, supra, at pp.

839-840,(Stevens, J., dissenting)

Justice Stevens’ reasoning and marshalling of historical authority

throughout his entire dissent in Tuttle is irrefutable, and should, in

this case, petitioners respectfully submit, be the touchstone for

putting liability for Gwaltney's conduct where it clearly and nghtly

belongs pursuant to 18 U.S.C. § 242, 42 U.S.C. § 1983, and the

Fourteenth Amendment; squarely upon the California Highway

Patrol, the source of the "state action" upon which Gwaltney's

conviction and the jurisdiction of this court rest. The facts at bar are

far different from the sole instance of excessive force in Tuttle,

where the decedent had summoned the police as a hoax and

pretended to be the robber whom he, himself, had reported. If the

calculated and deliberate death of a motorist on interstate highways

at the hands of a ruthless and flamboyant state police officer cannot

be laid at the door of the highway patrol, then of what use is the

Constitution? Who will patrol the Highway Patrol?

CONCLUSION

Between Robin Bishop and the California Highway Patrol

organization stands only the Constitution and This Court. She was

female motorist traveling at night alone in the desert on an interstate

highway. She was unarmed, and obliged by law to stop when a

red light flashed behind her from the CHP's patrol vehicle driven by

its armed and uniformed officer. He was a large man much older

and stronger than she, standing behind a badge bearing the

imprimatur of California.

The CHP trained, armed and supervised its. officer.

Gwaltney handcuffed Robin Bishop with CHP handcuffs which the

CHP had taught him to use. He drove Robin in a CHP marked

vehicle to a lonely place he had used to humble other young,

attractive female motorists, he tuned in the CHP dispatcher on the

CHP radio and forced Robin to have sexual intercourse with him

while she was handcuffed in the back seat of the CHP vehicle. He

then shot her in the back of the head with the CHP revolver, and

radioed to the CHP dispatcher that he had found a women's body by

the roadside. The CHP helped him avoid detection so that he could

dispose of his CHP weapon, and have his CHP uniform cleaned,

and the CHP gave him aid, comfort and remuneration during the

investigation and criminal trials that followed. The words Gwaltney

spoke as he apprehended Robin Bishop, whatever they were, were

the authoritative words of the CHP, and the bullet that killed her

belonged to the CHP.

Neither Robin Bishop, nor any other attractive woman,

would have stopped her car alone in the desert at night for George

Michael Gwaltney, private citizen. Nothing but the paraphernalia

provided by the CHP could have caused Robin to stop for George

Michael Gwaltney, converse with him, be confined by him, and be

touched by him. Gwaltney had possession of and was using CHP

property with the CHP's consent. He could not have perpetrated his

successive unspeakable crimes and constitutional violations upon

Robin Bishop without the help, assistance, training, property and

protection of the CHP.

Gwaltney would have gone free after the two San

Bernardino County mistrials had he been George Michael Gwaltney,

private citizen. Only because he was George Michael Gwaltney,

CHP officer, was the Federal District Court in the Central District of

California able under the Civil Rights Act to gain jurisdiction over

him. He was amenable in that forum solely because he was the

agent of the State of California acting within the course and scope of

his agency at the time he deprived Robin Bishop of her civil rights.

If, without being an agent of the state of California, Gwaltney could

not have been convicted in federal court for criminally violating

Robin Bishop's civil rights, how is it possible that the State of

California is not civilly liable for the self-same acts? Without

California's state action, there would have been no federal crime of

which Gwaltney could be guilty. Since Caiifornia's agency has

been established beyond a reasonable doubt by Gwaltney's

conviction, the same agency as a matter of law and res judicata

makes the CHP civilly liable for deprivation of the same civil nghts.

Unfortunately, the sad pattern and practice of the CHP’s

abnegating responsibility and having no liability for its officers’

crimes committed in uniform and on duty led, on June 23, 1988, to

the conviction of a second CHP officer for the murder of a young,

attractive female motorist in San Diego. CHP patrolman Craig

Peyer was convicted of murdering Cara Knott of El Cajon, a 20 year

old student at San Diego State University, after pulling her car over

Dec. 27, 1986.

DATED: July 20, 1988 By Thomas M. Burton

County. Rufus L. Yent, Judge. Affirmed.

Burton, Brunt & Robbins and Thomas M. Burton for

Plaintiffs and Appellants.

John K. Van De Kamp, Attorney general, Richard D.

Martland, Chief Assistant Attorney General, Marvin Goldsmith,

Senior Assistant Attorney General, Randal! B. Christison,

Supervising Deputy Attorney General, Kristin G. Hogue, Luis R..,

Vargas, Deputy Attorneys General for Defendants and Respondents.

The appeal here is from a judgment of dismissal following

the sustaining of a demurrer. The underlying action was brought by

Merlin and June Bishop, almost three years after their 23-year-old

daughter Robin (the victim) had been raped and killed by California

Highway Patrolman George Michael Gwaltney, and about six

months after Gwaltney had been convicted of charges related to the

acts noted and sentenced to federal prison for 90 years. The Bishops

sued as administrators of the victim's estate and on their own behalf,

alleging that Gwaltney, three of this supervisors, and the California

Highway Patrol (CHP) had violate plaintiffs’ civil rights as secured

under 42 U.S.C. section 1983. “Gwaltney defaulted and the

demurrer of the remaining defendants was sustained with leave to

amend. Plaintiffs declined to amend and the complaint was

dismissed as to those defendants. Plaintiffs have appealed from the

ensuing judgment of dismissal. After reviewing the record on

appeal, on our own motion, we issued an OSC re: sanctions for a

frivolous appeal as it related to plaintiffs’ appeal against the CHP.

PROCEEDINGS IN THE TRIAL COURT

The complaint alleged that Gwaltney was assigned to the

Barstow substation of the CHP and was at all times acting as the

agent and servant of the CHP in the course and scope of his

employment; that Gwaltney had a "notorious, indiscreet and prurient

interest in sex and had developed a pattern and practice of using the

‘- Section 1983 recites in relevant part: "Every person who,

under color of any statute, ordinance, regulation, custom, or usage,

of any State or Territory or the District of Columbia, subjects, or

Causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress." (Emphasis added.)

The state courts of California have concurrent jurisdiction

with the federal courts to hear actions brought under 42 U.S.C.

section 1983.

complaint sought a total of over $100,000,000 in compensatory and

punitive (exemplary) damages and attorney's fees.

The supervisor defendants and the CHP (hereafter

defendants) demurred to the complaint on the grounds that it did not

state facts sufficient to constitute causes of action (Code Civ. Proc.,

§ 430.10, subd. (e)) because: (1) the CHP, as a state agency, is not

a "person" within the meaning of section 1983 (see fn. 1,_supra); (2)

the supervisor defendants had not personally participated in or

caused the alleged deprivations; (3) counts 1 through 5 (cruel and

unusual punishment, false imprisonment, unlawful search and

seizure, sex discrimination, and failure to protect) and count 10

(impeding the investigation) did not survive the victim's death; (4)

the facts alleged in counts 1 (cruel and unusual punishment) and 4

(sex discrimination) were insufficient to constitute such causes of

action; (5) the facts alleged in count 5 (failure to protect), count 7

(negligence) and count 10 (impeding the investigation) were

insufficient to constitute causes of action cognizable under the

federal Civil Rights Act; (6) as to all counts, plaintiffs had an

adequate state law remedy.

After a hearing, defendants’ demurrer was sustained on all

counts "for failure to state a cause of action under federal civil rights

law." Plaintiffs were given 30 days to amend their complaint, but

chose not to do so. Defendants then noticed a motion to dismiss the

complaint. Thereafter, plaintiffs amended the complaint as to count

7 (negligence) only, and conceded that a judgment of dismissal

could be entered against the amended complaint. Such a judgment

was entered, and this appeal followed.

DISCUSSION

Plaintiffs contend: (1) they have stated facts sufficient to

constitute causes of action against the CHP and against the

supervisor defendants for both vicarious and direct liability; and (2)

they have adequately pleaded constitutional deprivations under the

several theories alleged.

LIABILITY OF THE CHP

Plainuffs content first that the CHP is vicariously liable for

Gwaltney's deprivation of the victim's constitutional rights, because

such deprivation occurred within the course and scope of

Gwaltney's employment. However, plaintiffs rely on cases in

which the plaintiffs had sued counties or cities for vicarious liability

L.Ed.2d 358, 99 S.Ct. 1139], the Supreme Court

firmly held that states ere not amenable to suit under

section 1983 because of the immunity conferred

upon them by the Eleventh Amendment. [Citation.]

Both_Quern and its predecessor, Edelman v. Jordan

(1974) 415 U.S. 651 [39 L.Ed.2d 662, 94 S.Ct

1347], involved an action brought against a state or

its officials in federal court.....Plaintiffs argue Quer

is inapposite, as they have chosen to proceed in state

court [fn. omitted], thus alleviating any potential

Eleventh Amendment problems. They do not rely on

any direct decisional holding but rather primarily

upon a footnote in Maine v. Thiboutot (1980) 448

U.S. 1 [65 L.Ed.2d 555, 100 S.Ct.

2502)....{/stating], "No Eleventh Amendment

question is present, of course, where an action is

brought in a state court since the Amendment, by its

terms, restrains only "[t]he Judicial power of the

United States.”” (448 U.S. at pp. 9-10, fn. 7 [65

L.Ed.2d at pp. 562-563]).)

prerogatives and powers of this office to exact sexual tribute from

female motorists whom he apprehended”; that the supervisor

defendants knew or should have known of such pattern and practice

and taken action to curb it; that the CHP had a "policy, pattern and

practice" of allowing Gwaltney and other male officers in the

Barstow area to use their official powers for personal sexual

gratification, as long as the officer met their traffic citation quotas

and generally complied with departmental regulations, and that

Gwaltney, using the authority and property of the State of California

a, had stopped the victim for speeding and then raped and executed

her.

The complaint alleged further that the foregoing actions

constituted, as to the victim: cruel and unusual punishment (count

1); false imprisonment (count 2); unlawful search and seizure

(count 30; sex discrimination (count 4); failure to protect (count 5);

wrongful death (count 6); negligence (count 7); and deprivation of

life without due process of law (count 9), and, as to the victim's

parents, loss of parenthood (count 8), and deprivation of the due

process right to have Gwaltney brought speedily to justice (by

impeding the investigation of the victim's death) (count 10). The

under California Government Code section 815.2,‘ which provides

for such liability on the part of a “public entity,” including a county

“or a city. In the case here, however, plaintiffs sued the CHP under

42 United States Code section 1983 (see fn. 1, supra), which

provides for liability for a “person,” and more significantly, as wil!

be amplified hereafter, it has been judicially decided categorically

that “a state is not a ‘person’ under section 1983." (Pyne v. Meese

(1985) 172 Cal. App.3d 392, 403.)

Plainuffs have devoted over 20 pages of their opening brief

and several pages of their closing brief to an attempted refutation of

the holding in Pyne that a state and its agencies may not be sued as

“persons” under section 1983. We have read plainuffs arguments

with great care, and have concluded that they are more than

adequately answered (or anticipated) by the following reasoning in

Pyne itself:

"In Quern v. Jordan (1979) 440 U.S. 332 [59

4 Section 815.2 recites in relevant part: "(a) A public entry is

liable for injury proximately caused by an act or omission of an

employee of the public entity within the scope of his employment if

the act or omission would, apart from this section, have given rise to

a cause of action against that employee or his persona!

representative.

"That footnote has not gone unnoticed, either

by the courts or commentators. [Citations.]

However, the majority of state courts which have

directly addressed the issue of whether the holding of

Quern is applicable to actions in state courts have

held that it is. [Citations.j6/ [In footnote No. 6, the

court stated, in relevant part] The United States

Supreme Court has not yet decided the issue, and we

are unwilling to find the footnote in Thiboutot

dispositive....Moreover, we recently held that the

State courts of California should apply federal law to

determine whether a complaint pleads a cause of

action under section 1983 sufficient to survive a

general demurrer....in Sykes v, State of California

(Dept. of Motor Vehicles) (9th Cir. 1974) 497 F.2d

197, 201, the court held the DMV is not a ‘person’

within the meaning of section 1983.....

ae: Upon reading [the cases cited by

defendants], one might conclude the question of

whether a state is immune from suit because of the

6 1

Eleventh Amendment or whether it is immune

because it is not a ‘person’ are one and the same,

i.¢., a State is not a ‘person’ under section 1983

because of the Eleventh Amendment. However, this

is not necessarily so.

"One case observed ‘two traditional obstacles

to suing states in federal courts under 42 U.S.C. §

1983: (1) the eleventh amendment bar against suing

states in federal courts; and (2) judicial interpretations

of § 1983 holding that states are not "person" within

the meaning of the statute.’ (.... Verner v, State of

Colo. (D. Colo. 1982) 533 F.Supp. 1109,

1113.)....." (Pyne v. Meese. supra, 172

Cal.App.3d 352, 401-403.)

In view of all the above, plaintiffs’ contention that the CHP

may be sued as a "person" under section 1983 is entirely without

merit, if not specious. More particularly, there is not a shred of

authority cited to support the assertion that the State of California is

a person; the legal reality is that all the authority is precisely to the

contrary (infra).

is liable for death or injury to person or property proximately caused

by a negligent or wrongful act or omission in the operation of any

motor vehicle by an employee of the public entity acting within the

scope of his employment"). “However, this theory was neither pled

nor argued in the trial court. At oral argument, counsel for plaintiffs

conceded that the theory had not been pled, but insisted that such an

omission was not a problem, because plainuffs were enutled to

recover if their complaint alleged facts which stated a cause of action

under any theory, regardless of whether the theory had been

identified.

In support of this argument, plainuffs' attorney referred us

to the cases he had cited on thee issue in his reply brief. However,

none of the cited cases concerned the failure to plead a statutory

theory of recovery; moreover, “the general rule [is] that statutory

causes of action just be pleaded with particularity.....[e]very fact

essential to the existence of statutory liability must be pleaded.”

(Susman vy, City of Los Angeles (1969) 269 Cal.App.2d 803,809.)

4 At oral argument, counsel for plaintiffs characterized Section

170001 of the Vehicle Code forcefully as his "best shot” in

establishing the liability of defendants, adding that it was plaintiffs’

“clearest avenue of recovery."

Moreover, even if the CHP could have been sued under

section 1983, it could not have been sued for vicarious liability

thereunder. In Monell v, Dept, of Soc, Serv, of City of N.Y.

(1978) 436 U.S. 658, the U.S. Supreme Court held that local

governing bodies could not be sued for vicarious liability under

section 1983. In their reply brief, plaintiffs argue that White v.

Orange County, supra, 166 Cal.App.3d 566, held that Government

entities could be sued for vicarious liability for police misconduct.

However, the suit and the holding in White were based on the

California Tort Claims Act, and the suit here and the holding in

Monell are based on the Federal Civil Rights Act. * More

particularly, in White, the court reasoned that "in [California]

governmental tort cases, 'the rule is liability, immunity is the

exception.'.....Government Code section 815.2, subdivision (a)

[see fn. 2, supra], follows common law and imposes governmental

liability for injuries proximately caused by acts of employees within

the scope of employment." (Id., at p. 570, fn. omitted.)

3-Plaintiffs state in their opening brief that their allegations

"are not mere tort claims in constitutiona’ guise but because of their

gravity, clearly assume substantive due process constitutional

dimensions."

xiii

More particularly, as the U.S. Supreme Court stated in

Monel, "it is when execution of a government's policy or custom,

hel hea tons foe 3 by —

fairly be said to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983." (Monell v.

Dept.of Soc. Serv, of City of N.Y... supra, 436 U.S. 658, 694,

emphasis added.) In the case here, plaintiffs did not and could not

allege that the CHP had an "official" policy that its officers should

rape and kill female motorists. Accordingly, even if the CHP could

have been sued under section 1983, it would not have been directly

liable to plaintiffs thereunder on this latter theory.

Plaintiffs also contend that plaintiffs [sic] are directly liable

pursuant to Nevada v. Hall (1979) 440 U.S. 410. However, the

issue in Nevada was whether the State of Nevada was liable for tort

damages based on California law, while the issue in the case here is

whether the State of California is liable for violations of federal law

(see fn. 3, supra). Accordingly, Nevada has no legal relevance to

the case here. In this connection, counsel's representation of the

law on this point come perilously close to a violation of Rule 7-105

of the Rules of Professional Conduct.

Plaintiffs also contend that the CHP is directly liable

pursuant to Bivens v, Six Unknown Fed, Narcotics Agents (1971)

403 U.S. 388, because Bivens allows direct action founded upon

constitutional violations where section 1983 is not available.

However, we need not decide whether Bivens applies to this case,

because plaintiffs; entire complaint was predicated only on section

1983. More particularly: (1) the complaint is enttled

“COMPLAINT FOR VIOLATION OF CIVIL RIGHTS (42

U.S.C., §§ 1983, 1985, 1986, 1988]"; (2) the allegation of each

cause of action therein is prefaced by the heading "Violation of Civil

Rights (e.g. "FIRST CAUSE OF ACTION" (violation of Civil

Rights - Cruel and Unusual Punishment), and (3) the prayer as to

each cause of action seeks "damages due to the violation of [the

victim's civil rights caused by [e.g.] defendants’ cruel and unusual

punishment.” Accordingly, having limited their pleading to section

1983, plaintiffs cannot credibly argue that the CHP is liable under a

different theory. The sophistry here practiced is both clumsy and

palpable.

Finally, plaintiffs contend that the CHP is liable to them for

having violated section 17001 of the Vehicle Code ("A public entity

In the case here, there were absolutely no allegations in the

complaint as to any “operation of [a] motor vehicle” by Gwaltney in

committing the wrongful acts complained of. Equally lacking, there

were no allegations that plaintiffs had complied with the claims

requirements of Government Code section 900 et seq. in connection

with the Vehicle Code section 17001 theory of liability. In view of

these omissions, plaintiffs’ contention that they are entitled to

recover under Vehicle Code section 17001 is whol!y without merit.

In view of all the above, the trial court properly sustained the

CHP’'s demurrer.

LIABILITY OF THE SUPERVISORS

The CHP supervisors named as defendants in plaintiffs’

complaint were: (1) James Burchett, the Captain of the Barstow

Substation of the CHP; (2) Junior David Martin, the head of the

Inland Division of the CHP; and (3) Leonard De Groff, the Director

of CHP Personnel. Plaintiffs alleged that the foregoing supervisors

“knew or should have known" of Gwaltney's practice of sexually

harassing female motorists; that the supervisors took a “laissez-

faire” attitude towards such practice and failed to establish a firm

policy to prevent it; that such failure constituted a "reckless

disregard" of, or "deliberate indifference" towards, the rights of

female motorists, and "a lack of that degree of care which prudent

and reasonable individuals [in the supervisors’ positions] would

show in exercising [their] duties, " and that such failure proximately

caused the victim's death.

However, "without a showing of_direct responsibility, " a

section 1983 action will not lie against police supervisory officers

for "failure to act [even] in the face of a statistical pattern" of police

misconduct. (Rizzo v, Goode (1976) 423 U.W. 362, 3786,

emphasis on "direct" added, emphasis on "failure" in original.) For

supervisory officials to be liable under section 1983, there must be

an "affirmative link between the occurrence of the various incidents

of police misconduct and the adoption of any plan or policy by [the

officials] -- express or otherwise -- showing their authorization or

approval of such misconduct." (Id., at p. 371, emphasis added.)

"The result of Rizzo and subsequent cases in the lower

federal courts applying the standards it announced is that a failure of

a supervisory official to supervise, control, or train the offending

individual officers is not actionable absent a showing that the official

either encouraged the specific incident of misconduct or in some

other way directly participated in it. At a minimum a plaintiff must

show that the official at least implicitly unauthorized, approved, or

knowingly acquiesced in the unconstitutional conduct of the

offending officers. [Citation.]

"Where, as here, the constitutional violation was not alleged

to be part of a pattern of past misconduct, a supervisory official or a

municipality may be held liable only where there is essentially a

complete failure to train the police force, or training that is so

reckless or grossly negligent that future police misconductjs almost

inevitable [citation], or would properly be characterized as

(6th Cir. 1982) 668 F.ed 860, 874.)

In the case here, plaintiffs did not and could not allege that

the defendant supervisors "directly participated" in raping or killing

the victim, or “implicitly authorized, approved or knowingly

acquiesced" in the rape and murder, or that the supervisors’ failure

to train and supervise the CHP personnel was so reckless or grossly

negligent that the rape and murder were “almost inevitable” or

“substantially certain to result." Accordingly, under the Rizzo/Hays

frivolous is not whether [the attorney] acted in the honest belief he

had grounds for appeal, but whether any reasonable person would

agree that the point is totally and completely devoid of merit, and,

therefor, frivolous.’ [Citing cases.]" (In re Marriage of Flaherty.

supra, 31 Cal.3d 637, 649.)

In my routine review of the record on appeal and my study

of the briefs, I of course encountered Pyne v. Meese, supra, 172

Cal.App.3d 392. There is little if any difference between Pyne and

the case before us. In_Pyne the plaintiff had undertaken to press a

section 1983 case against the Department of Motor Vehicles. In a

cogently reasoned opinion Pyne held that no cause of action under

section 1983 could be stated against the DMV as an agency of the

State of California. That portion of the Pyne opinion which

marshals the U.S. Supreme Court cases on this issue we quoted

earlier in our opinion dealing with the merits. What we note now is

further language in Pyne which categorically states, "Moreover, this

court has previously concluded that a state is not a ‘person’ under

section 1983 and we find no reason to reject that holding or

reasoning. (CLaylor vy. Mitze] (1978), 82 Cal.App.3d 665, 670...;

see also Mezey vy. State of California (1984) 161 Cal.App.3d 1060,

standard recited above, plaintiffs did not state a section 1983 cause

of action against the supervisors and the demurrer was likewise

properly sustained as to them.

Plaintiffs otherwise rely on Pennhurst State School and

Hosp. v. Halderman (1983) 465 U.S. 89, where the issue was

whether a federal court could award injunctive relief against state

officials on the basis of state law, and Bundy v. Jackson (D.C. Cir.

1981) 641 F.2d 934, where the issue was whether sexual

harassment of an employee violated Title VII. Neither of the

foregoing cases has any legal relevance to the case here.

In view of our holding that the demurrer was properly

sustained as to the CHP and as to the supervisors, we need not

address plaintiffs’ contention that they have adequately pleaded

constitutional deprivations under the several theories alleged.

Ill

SANCTIONS

In this division for years we have followed an informal

policy of not awarding sanctions for a frivolous appeal unless there

is unanimous agreement to do so. In this instance, lacking such

unanimous agreement, the motion for sanctions will be denied.

DISPOSITION

The judgment is affirmed, and the motion for sanctions is

denied.

NOT FOR PUBLICATION

ls/McDaniel

Acting P.J.

We concur:

0 ‘nz Opinion. Bishop v. Gwaltnev. E0316!

I concur in the judgment but feel constrained to add some

comments with reference to the denial of the motion for sanctions in

which I also concurred in accordance with the policy noted in Part

ITI of the opinion.

Counsel for plaintiffs responded in writing to the order to

show cause, but, although he had a full opportunity to do so, he

made no presentation or comment on the matter at oral argument.

During the thirteen years I have held this position, I have never

participated in a; case in which the appeal, on legal grounds, has

been so totally devoid of merit. In view of this experience and the

comments which follow, I am at a loss to understand why my

colleagues do not agree that sanctions should have been imposed.

Disposition of matters of this kind, since 1982, have been

controlled by In re Marmiage of Flaherty, 31 Cal.3d 637. Under

Elaherty there are two possible grounds for concluding that n appeal

is frivolous. According to Flaherty, "....an appeal should be held to

be frivolous only when it is prosecuted for an improper motive -- to

harass the respondent or delay the effect of an adverse judgment --

or when it indisputedly [sic] has no merit -- when any reasonable

attorney would agree that the appeal is totally and completely

without merit." (Jd., at p. 650.)

From these statements by the Supreme Court, it is clear that

the grounds are disjunctive, i.e., an appeal may be held to be

frivolous if either criterion is present. The latter ground above

noted is regularly referred to as the "objective standard," and as to

such standard, Flaherty states: "[t]he objective standard looks at the

merits of the appeal from a; reasonable person's perspective. ‘The

problem involved in determining whether the appeal is or is not

1065....)" (d., at p. 403.)

Because plaintiffs were and are attempting to proceed against

the CHP, in terms of their pleadings, solely on the basis of section

1983, I was and remain particularly impressed by the above-quoted

Pyne language that "we find not reason to reject that holding or

reasoning.” In view of that language, what soon followed in Pyne

was compelling. The court said "[t]he [trial] court found the

inclusion of these defendants in the action ‘is so clearly contrary to

established law in this matter that it can only be characterized as

frivolous and in bad faith’ and awarded those parties attorneys fees

under Code of Civil Procedure section 128.5. We agree with the

trial court that the order for an award of fees to the State....was

proper." (Pyne v. Meese, supra, 172 Cal.App.3d 392, 405,

emphasis added.)

It was this language, combined with the obvious

circumstances that plaintiffs’ counsel is thoroughly familiar with

Pyne (he cites it repeatedly in this papers), which largely led the

court to issue the order to show cause. What is frivolous in the

his written response to the order to show cause by stating

"Irrespective of the unresolved question of state liability in its own

courts under § 1983, the CHP is liable under § 17001 for the rape

and murder of an innocent and unarmed female_motorist by its on-

duty employee by means of the State's motor vehicle.” (Original

emphasis.) There is absolutely no legal basis whatsoever for that

Statement; in my view, such an imposition on this court cannot be

tolerated.

At this juncture, I can do no better than quote from another

case involving the issues of sanctions for a frivolous appeal, "[t}he

vice of the present case is that it has succeeded to the extent that the

state has been put to a considerable expense....in extricating itself

from this piece of ‘legal flypaper,’ not to mention the burden that

has been place on the courts. [§]] While we are not able to measure

the damage to the legal system or the expense to the state, we can

impose sanctions for the taking of this frivolous appeal

which.....will [we hope] deter such conduct in the future."

(Custom Craft Carpets, Inc, v, Miller (1982) 137 Cal.App.3d 120,

125.) ”

In my opinion the motion for sanctions should have been

granted and $5,000 awarded.

NOT FOR PUBLICATION

‘Acting P.J.

7 In Custom Craft Carpets, Inc. the court awarded $5,000

in sanction. (Id., at p. 123.)

Third District certainly should be frivolous in the Fourth District

too. ©

Plaintiffs’ written response to the order to show cause relies

primarily on a_dissent in a case form Alaska, State v, Green, 633

P.2d 1381. Otherwise, counsel's discussion of U.S. Supreme

Court cases is massively and precisely refuted by those portions of

Pyne quoted earlier in our opinion.

Accordingly, following the lead of Pyne which itself relied

on earlier California decisions that the State of California is not a

"person" for purposes of section 1983, we can do naught but

conclude that any attempt to appeal based on a contention that the

State is a person under section 1983 cannot be anything else but

frivolous because, under the Flaherty standard, "any reasonable

attorney [who reads the cases] would agree that the appeal is totally

and completely without merit.” (In re Marriage of Flaherty, supra,

5.Although there was no motion for sanctions for a frivolous

appeal in Pyne, the trial court's award of sanctions under section

128.5 of the Code [sic] Civil Procedure, on analogous grounds,

was affirmed. (Id., at p. 405.)

Plaintiffs’ counsel himself appears, by implication, to be not

too sanguine about his section 1983 position. I am of this view, for

at both oral argument and in this written response to the order to

show cause re: sanctions he takes the position that his "clearest

avenue of recovery" is under section 17001 of the Vehicle Code.

Counsel[s section 17001 argument is fatally flawed as we shall

demonstrate (infra), and so if it is his "best shot," then the section

1983 effort has been given short shrift even by plaintiff's own

counsel.

Section 17001 of the Vehicle Code provides that "A public

entity is liable for death or injury to person or property proximately

caused by a negligent or wrongful act or omission in the operation

of any motor vehicle by an employee of the public entity acting

within the scope of his employment." Counsel for plaintiffs points

out that the CHP is a "public entity." He says it is indisputable that

the rape and murder of the victim were "wrongful acts." He

must have been based upon the advice of counsel, for there is not

way that the lay plaintiffs would have been in a position, on their

own, to make a decision to appeal.

76_

correctly points out that Gwaltney was an employee of the CHP.

He also argues that Gwaltney was acting within the scope of this

employment at the time of the wrongful acts. Next counsel argues,

"finally it is clear that the rape and murder of Robin Bishop were

facilitated by and connected with "the operation of any motor

vehicle’....". These facts in the aggregate are characterized by

plaintiffs’ counsel as bringing plaintiffs’ cause within the ambit of

section 17001. Such an argument is puerile at best.

First, the statute contemplates death or injury to a victim

which is_caused by the operation of a motor vehicle. The statute

says nothing about being ":facilitated by and connected with" such

operation. The victim was not killed by Gwaltney's operation of his

CHP unit. More importantly, nowhere in the complaint is there any

a a ; 1 by

hich

Finally, it is elementary that any claim pursued pursuant to

section 17001 of the Vehicle Code is subject to the Tort Claims Act.

In this connection, plaintiffs did not allege compliance with the act.

Notwithstanding these gaping deficiencies in the allegations of the

complaint, plaintiffs counsel yet has the effrontery [sic] to conclude

Supreme Court, U.S.

FILED

JAN 6 1989

| JOSEPH F. SPANIOL, Jl

NO. __ 88-527 CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1988

MERLIN BISHOP, et al.,

Petitioner,

Vv.

GEORGE MICHAEL GWALTNEY, et al.,

Respondents.

On Petition for Writ of Certiorari

to the California Supreme Court

BRIEF OF RESPONDENT IN OPPOSITION

JOHN K. VAN DE KAMP

Attorney General

RANDALL B. CHRISTISON

Deputy Attorney General

110 West A Street, Suite 700

San Diego, California 92101

Telephone: (619) 237-7772

Attorneys for Respondent

QUESTIONS PRESENTED

Whether the State of California is a

“person” as that term is used in 42

United States Code section 1983.

Whether, notwithstanding the terms

of 42 United States Code section

1983, the State of California is

subject to liability where the

alleged wrong was not pursuant to

any official policy.

Whether direct liability may be

asserted against the State of

California under Bivens v. Six

Unknown Federal Narcotics Agents 403

U.S. 388 (1971) where such a case

could not be brought under 42 United

States Code section 1983.

Whether a criminal conviction of a

police officer for a civil rights

violation gives rise to strict

liability against a state.

ii.

TABLE OF CONTENTS

QUESTIONS PRESENTED ......e..-s i

RESPONDENTS BRIEF IN OPPOSITION ... 8 1

REASONS WHY THE PETITION SHOULD

I THE GROUNDS FOR GRANTING

CERTIORARI ARE NOT ONLY ABSENT,

THEY ARE NOT EVEN ASSERTED » 2

A. Monell Official Policy. . 4

B. The State Is Not a Person. 7

Il PETITIONERS’ CONFUSED ARGUMENT

OF DIRECT STATE LIABILITY UNDER

BIVENS AND HALL IS WITHOUT

III BECAUSE THE PETITION IS UNCLEAR

AND INACCURATE, IT SHOULD BE

IV THE REMAINING CLAIMED BASES ARE

EITHER NOT SUBSTANTIAL FEDERAL

QUESTIONS OR ARE SIMPLY

Mma weeerue s 4 6 6 6 8 ee ltl 13

A. Vehicular Tort ...... 14

B. Respondeat Superior ... 14

os inqgemmitication ...-«. 15

iii.

D. Official Capacity Suits

E. Right to Travel

F. State Action

V PETITIONERS’ FAILED TO SERVE

THE PETITION IN COMPLIANCE WITH

RULE 28

_ CONCLUSION

OPPOSITION

BRIEF

iv.

TABLE OF AUTHORITIES

Bivens v. Six Unknown Federal Narcotics

Agents,

403 U.S. 388 (1971) arate ier ee oe,

Brandon v. Holt,

City of Oklahoma City v. Tuttle,

4714 U.S. GOS C905) « ss «0s ee 2 ED

Davis v. Passman,

442 U.S. 228 (1979) OO ial wide aa a Ca at alt ey ee

Della Grote v. Rhode Island,

781 F.2d 343 (lst Cir. 1986) ..... 8

Fayle v. Stapley 607 F.2d 858,

(SER CAs. ASTS) sas se 8 30 oes 6 SS

Fleming v. Dept. of Public Safety,

837 F.2d 401 (9th Cir. 1988) ..... 8

Heckler v. Campbell,

461-°U.8. 456 (2963) «oe 6 Se eee se 9

Monell v. Department of Social Services,

436 U.S. 658 (1978) .... 3, 4, 14, 17

Nevada v. Hall,

440 U.S. 410 (1978) ...«s «2 « BD,

Parker v. Levi,

A Fle & } er er eee ae, eS

Pembaur v. Cincinnati,

475 U.S. 469 (1986) sé we a Se Soe ee

Smith v. State Dept. of Public Health,

428 Mich. 540; 410 N.W.2d 749 (1987) . 7

Stalnaker v. Boeing Co.,

186 Cal.App.3d 1291 (1986) ......412

Tarpley v. Green 684 F.2d l,

(Dsf-e CES. S7GZ) « « 6+ oe et th heh thUuhlU RO

Toledo, Peoria & W.R. Co. v. State of

Illinois,

744 F.2d 1296 (7th Cir. 1984) .... 7

United States v. Adams,

ce Sa a ee ee rca |

Will v. Michigan Dept. of State Police

(BO. BI-ig0F} «ce ecsntirnet & ss vw *F

California Government Tort Claims Act

(Cal. Govt. Code §§ 810-995.6) .... 11

RESPONDENTS BRIEF IN OPPOSITION

The respondent, State of

California, acting through the

Department of California Highway Patrol,

respectfully requests that this Court

deny the petition for writ of certiorari,

seeking review of an order of the Court

of Appeal of California, Fourth

Appellate District, Docket No. E003161,

of January 27, 1988.

REASONS WHY THE

PETITION SHOULD BE

DENIED

THE GROUNDS FOR

GRANTING CERTIORARI

ARE NOT ONLY ABSENT,

THEY ARE NOT EVEN —

ASSERTED

Neither petitioners’ list of

questions presented nor any of their

arguments claims there is any basis for

issuance of a writ of certiorari.

Petitioners do not claim there is a

conflict between the circuits, within a

circuit, or between a circuit and a state

court of last resort. Nor have

petitioners indicated there is an

important issue of federal law which has

not been settled by this Court.

Petitioners assert four questions

for review. As near as respondent can

tell, they are: (1) the California

appellate court erred in holding a state

agency is not a person; (2) the

California court did not consider

petitioners’ argument that Monell v.

Department of Social Services, 436 U.S.

658 (1978), was inapplicable; (3) there

is direct constitutional liability under

Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. 388 (1971); and (4)

because an individual policeman was

convicted of a crime, there is

sufficient “state action” to find

liability as a matter of law.

Respondents submit none of these

questions are worthy of the commitment of

scarce judicial resources. As will be

discussed below, (1) the petitioners did

not plead there was an "official policy”

as required by Monell, supra, 436 U.S.

658; (2) as the threshold question of

official policy was not satisfied, the

question of whether a state is a person

need not be addressed; (3) the question

of whether a state is a person has been

adequately answered, in the negative, by

the weight of state and federal appellate

Opinions, and will be shortly answered by

this Court; (4) for numerous reasons, not

the least of which is this issue is first

raised on appeal, a Bivens, supra, remedy

is inappropriate; and (5) the remaining

arguments are frivolous.

A. Monell Official Policy

Monell requires there be

action pursuant to an official policy

which results in the deprivation of

rights. No policy, official or

otherwise, is alleged here.

As the California Court of Appeal

noted succinctly:

“In the case here, plaintiffs

did not and could not allege

that the CHP had an ‘official’

policy that its officers

should rape and kill female

motorists. Accordingly, even

if the CHP could have been sued

under section 1983, it would

not have been directly liable

to plaintiffs thereunder on

this latter theory.”

(Petition, p. 64.)

Instead, plaintiffs only allege

the state (CHP) had a “policy” of

allowing the offending officer to use his

powers as a policeman for personal

gratification. In other words,

petitioners equate negligence on the part

of the supervisor with an official State

policy.

As this Court recently stated

in Pembaur v. Cincinnati, 475 U.S. 469

(1986), there must be an allegation an

authorized decision maker adopted a

policy which, when carried out, resulted

in the complained-of act. (475 U.S. at

481.) A plurality of this Court also

stated:

“ranicipal liability under

section 1983 attaches where--

and only where--a deliberate

choice to follow a course of

action is made from among

various alternatives by the

official or officials

responsible for establishing

final policy with respect to

the subject matter in

question.” (Id. at p. 483.)

[Emphasis added. }

As petitioners have not alleged

anything close to the requisite official

policy, there is no need to consider the

other issues they have raisedl/.

B. The State Is Not a Person.

Although there is some

contrary authority, the overwhelming

majority of decisions addressing the

question have held a state is not a

person for purposes of the Civil Rights

Act. E.g., Toledo, Peoria & W.R. Co. v.

State of Illinois, 744 F.2d 1296, 1298-

1299 (7th Cir. 1984), cert. denied, 470

U.S. 1051 (collecting and analyzing

circuit opinions, and holding a state is

not a person) and Smith v. State Dept. of

1. Petitioners have sought

certiorari review based only upon

liability of the State of California and

its Department of Highway Patrol

(Petition, “Questions Presented”

segment). Petitioners raised below

liability of the wrongdoer’s

supervisors, which theory has since been

abandoned.

Public Health, 428 Mich. 540; 410 N.W.2d

749 (1987), cert. granted, U.S.

99 L.Ed.2d 696 (1988). But see Fleming

v. Dept. of Public Safety, 837 F.2d 401

(9th Cir. 1988), cert. denied, _____iU.S.

___, 102 L.Ed.2d 212 (1988) (holding a

trust territory is a person but without

discussion or even acknowledgement_of a

majority of opinions to the contrary);

Della Grote v. Rhode Island, 781 F.2d

343 (lst Cir. 1986) (a state is a person

where the State has waived its Eleventh

Amendment immunity).

As this issue has already been

argued to this Court in Will v. Michigan

Dept. of State Police (No. 87-1207), it

hardly makes sense for this Court to

address the issue once again in the same

term. This is particularly the case

where, as here, it would make no

difference in the disposition of the

current case: even were the state a

person, no official policy is asserted.

PETITIONERS’ CONFUSED

ARGUMENT OF DIRECT

STATE LIABILITY UNDER

BIVENS AND HALL IS

WITHOUT MERIT

Petitioners claim the decisions of

Nevada v. Hall, 440 U.S. 410 (1978) and

Bivens v. Six Unknown Fed. Narcotics

Agents, supra, 403 U.S. 388 (1971)

provide an alternative basis for relief.

These matters were dealt with by the

Court of Appeal succinctly and correctly.

(Petition, pp. 64-65.)

First, petitioners have improperly

raised this issue for the first time on

appeal. (Heckler v. Campbell, 461 U.S.

10.

458, 468 n. 12 (1983).) The only theory

presented to the trial court was

liability under the Civil Rights Act in

several manifestations.

Second, an exercise of review is

hardly suggested, much less compelled, by

the prior decisions of this Court.

Petitioners assert Nevada v. Hall, supra,

provides for direct action under federal

law. (Petition, p. 34.) Simple

inspection shows Hall deals with the

issue of the susceptibility to suit

under state (California) law when an

employee of another state (Nevada)

ventures into the first state and commits

an ordinary tort. Nothing in Hall

Supports petitioners’ argument of direct

liability of a sovereign state under

federal iaw.

il.

Petitioners then assert Bivens

provides for a remedy under the

constitution when other remedies are not

available. Even were this a correct

interpretation of Bivens, it does not

come into play: petitioners here have

other remedies but either failed to use

them to their advantage or to use them at

all. Petitioners had remedies available

to them under the California Government

Tort Claims Act (Cal. Govt. Code §§ 810-

995.6) but evidently failed to even

attempt to bring such an action. In the

case of their remedy against the

offending officer, Gwaltney, they did not

obtain satisfaction. The purpose of

Bivens is certainly not the creation of a

de facto insurance policy in favor of

unsatisfied suitors.

12.

As one court noted, “Bivens actions

seek to permit recovery where there has

been no remedy available for a violation

of a particular law.” (Stalnaker v.

Boeing Co., 186 Cal.App.3d 1291, 1307

(1986).) [Emphasis added.} Unlike

Bivens and Davis v. Passman, 442 U.S. 228

(1979), there were other forms of

judicial relief available, but

petitioners voluntarily waived them.

Further, even were Bivens relief

available, it is clear the remedy would

lie against the offending officer and

not, by means of vicarious liability,

against the State. (Tarpley v. Green 684

F.2d 1 (D.C. Cir. 1982); Fayle v. Stapley

607 F.2d 858 (9th Cir. 1979).)

ill

BECAUSE THE PETITION

IS UNCLEAR AND

INACCURATE, IT SHOULD

BE DENIED

Rule 21.5 requires a petition to

“present with accuracy, brevity, and

clearness” the matter for review. The

petition fails to comply with this rule.

If for no other reason, this is

sufficient basis to deny the petition.

THE REMAINING CLAIMED

BASES ARE EITHER NOT

SUBSTANTIAL FEDERAL

QUESTIONS OR ARE

SIMPLY FRIVOLOUS

Petitioners make several claims

concerning how the federal civil rights

act and the constitution should be

interpreted. Upon even cursory analysis,

one sees these arguments are, at best,

14.

insubstantial and indeed often

frivolous.

A. Vehicular Tort

Petitioners claim they state a

federal claim because California Code

secticn 17001 provides for vicarious

liability for vehicular torts.

(Petition, pp. 17-18.) Obviously, no

federal question is presented.

B. Respondeat Superior

Petitioners claim because

California state tort law provides for

respondeat superior, the Civil Rights Act

should also so provide. (Petition, pp.

15-18.) Obviously, state law has little

to do with this question of substantive

federal law which has been consistently

answered by this Court in the negative.

(E.g., Monell v. New York City Dept. of

15.

Social Services, 436 U.S. 658, 692-693

(1978); City of Oklahoma City v. Tuttle,

471 U.S. 808, 831 (1985) concurring

opinion of Brennan, J.)

Cs Indemnification

Petitioners claim because

California law provides for

indemnification of public employees sued

in the course of their duties (Cal. Govt.

Code §§ 825-825.6), the Civil Rights Act

should provide for vicarious liability.

(Petition, pp. 15-17. )2/ For the same

2. Petitioner’s statement of state

law is incorrect. Although a California

public employee is entitled to indemnity

in most situations, this is not one of

them. Government Code section 825

provides the entity shall indemnify an

employee who has requested and received

an unqualified defense. Government Code

section 995.2 provides the public entity

may refuse to provide a defense where the

act was a result "of actual fraud,

corruption, or actual malice.” Without

question, the acts of Mr. Gwaltney were

16.

reason as above, this question of state

governmental relationship hardly presents

a basis for altering federal substantive

law.

D. Official Capacity Suits

Petitioners claim because

suing a municipal employee in his

cfficial capacity is the same as suing

his employing entity, suing Gwaltney

renders the state liable. (Petition, pp.

18-33.) Obviously, Brandon v. Holt, 469

U.S. 464 (1985), makes plain official

capacity suits are quite separate and

distinct from actions based on respondeat

superior. (Id. at pp. 470-471.)

Although petitioners named Gwaltney

“individually and as [an officer] of the

the result of actual malice and

petitioners do not claim otherwise.

17.

California Highway Patrol,” doing so

does not change the analysis. "Since

official capacity suits generally

represent only another way of pleading an

action against an entity of which an

officer is an agent. . .” suing

Gwaltney in this way is only another way

of suing the state directly. (Monell,

436 U.S. 658, 690 n. 55). It does not

create a new form of respondeat superior.

E. Right to Travel

Petitioners claim because the

decedent had a right to travel, she was

deprived by Gwaltney of a federal right.

(Petition, pp. 40-43.) For purposes of

the pleadings, respondent has assumed

there is a protected right, the due

process right to life. How casting

petitioners’ case in terms of a different

18.

federal right avoids the defects of not

pleading a official policy, the state not

being a person and the rest is neither

explained nor explainable.

F. State Action

Petioners claim because

Gwaltney was convicted of criminal civil

rights violations, there is a finding of

state action. (Petition, pp. 43-49.)

This argument is baffling. Evidently,

petitioners believe there is some

separate rule providing for liability if

the wrongdoer has committed an act which

constitutes state action. No review of

controlling authority is necessary--state

action is merely cne of several

requisite elements of a civil rights

action. Again, petitioners seem to think

19.

if one or two elements are satisfied, the

rest of the case must necessarily follow.

PETITIONERS’ FAILED

TO SERVE THE PETITION

IN COMPLIANCE WITH

RULE 28

Petitioners purportedly filed with

the clerk of this Court its petition for

writ of certiorari on July 26, 1988.

Service of the petition was made by a

private parcel delivery firm to this

counsel on August 29, 1988. The petition

as received by this counsel recited it

was served by being placed in the United

States Post Office with postage prepaid

on August 24, 1988.

The petition for writ of certiorari

was received by the clerk on August 29,

1988, the same day received by this

20.

counsel. It was returned te counsel for

petitioner by mail dated

September 6, 1988, for failure of

compliance with Rule 33. Sometime later

a corrected petition for writ of

certiorari was filed with the Court.

On November 21, 1988, counsel for

respondent caused to have a telephone

inquiry made of counsel for petitioner to

determine when counsel for respondent

would see the corrected petitions.

Petitioner's counsel stated he could not

say, as he had not yet received the

corrected petition himself, but would

send one to respondent’s counsel as soon

as possible.

Rule 33.3 provides service shall be

made, “Personally or by mail... ator

before the time of filing.” Not only has

21.

there been no service at or before the

time of filing, but also no service was

made by mail. Respondent did not receive

the corrected petition until December 28,

1988, a full five months after filing.

Although service failures do not

deprive this Court of jurisdiction, these

errors are not the mere technical

mistakes having no relevance to this

Court’s as was found in Parker v. Levi,

417 U.S. 733, 742, n. 10 (1974); or

United States v. Adams, 383 U.S. 39, 42

(1966). Rather, these errors represent a

rather cavalier disregard of the rules.

22.

CONCLUSION

For the reasons stated above, it is

respectfully submitted this petition

should be denied and respondent be

allowed its costs. | |

g .

DATED: -ren / 4, (10 |

spectfully submitted,

JOHN K. VAN DE KAMP,

ete General of the

sfof California

ee Oe

DAL fe CHRISTISON

Deputy/Attorney General

Attorneys for Respondent

State of California

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.