OFFICE OF THE CITY ADORNEY
· CITY AND COUNTY OF SAN FRANCISCO
PETER J. KEITH
DENNIS J. HERRERA
Deputy City Attorney
City Attorney
DIRECT DIAL:
(415) 554-3908
E-MAIL:
peter.keith@sfgov.org
RECEIVED
July 5; 2011
JUL
The Honorable Justices of the
California Supreme Court
350 McAllister St.
San Francisco, CA 94102
Re:
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5 2011
ERK SUPREME COUP'
Hayes v. County ofSan Diego, California Supreme Court CaseNo. S193997
Hayes v. County ofSan Diego,Ninth Circuit Court of Appeals CaseNo. 09-55644
Letter In Support OfNinth Circuit Order of June 14, 2011 Certifying Question To
California Supreme Court, And Proposing A Restatement Of The Question .
Dear Justices of the California Supreme Court:
We write on behalf of the League of California Cities and the California State
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Association of Counties. Pursuant to Rule 8.548(e)(1), we write to support theNinth Circuit's
June 14, 2011 request that this Court address the following issue:
Whether under California negligence law, sheriffs deputies owe a duty of
care to a suicidal person when preparing, approaching, and performing a
welfare check on him.
We also respectfully urge, pursuant to Rule 8.548(e)(3), that the Court restate the
question to allow for the potential resolution of the negligence question on the basis of statutory
immunities or privileges.
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The Court Should Grant The Request
The correct resolution of the question whether tort liability exists under these
circumstances as a matter of California l<).w is of great importance to California local
governments. Each year, the sworn law enforcement officers employed by California cities and
counties must respond to literally thousands of calls from the public for help with persons who
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The League of California Cities (League) is an association of 476 California cities
dedicated to protecting and restoring local control to provide for the public health, safety, and
welfare of their residents, and to enhance the quality of life for all Californians. The League is
advised by its Legal Advocacy Committee, which is comprised of 24 city attorneys from all
regions of the State. The Committee monitors litigation of concern to municipalities, and
identifies those cases that are of statewide or nationwide significance. The Committee has
identified this case as being of such significance.
The California State Association of Counties (CSAC) is a non-profit corporation. The
membership consists of the 58 California counties. CSAC sponsors a Litigation Coordination
Program, which is administered by the County Counsels' Association of California and is
overseen by the Association's Litigation Overview Committee, comprised of county counsels
throughout the state. The Litigation Overview Committee monitors litigation of concern to
counties statewide and has determined that this case involves a matter affecting all counties.
Fox PLAZA
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RECEPTION:
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SAN FRANCISCO, CAUFORNIA 94102-5408
FACSIMILE:
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n:\lit\li20ll\120003\00710635.doc
CITY AND COUNTY OF SAN FRANCISCO
OFFICE OF THE CITY ATTORNEY
Letter to the Hon. Justices of the California Supreme Court
Page 2
July 5, 2011
pose a danger to t hemselves or others. Currently, theNinth Circuit is considering whether these
officers and their municipal employers are to be exposed to monetary liability for the
discretionary decisions they necessarily make in the course of these interventions. Moreover, a
decision regarding the scope of officers' discretion under these circumstances will have life-or­
death consequences for officers, members of the public, and mentally ill individuals. TheNinth
Circuit has correctly determined that this Court is better situated than a federal court to decide
this important issue under California law. We respectfully urge the Court to grant theNinth
Circuit's request.
2.
The Court Should Reframe The Question And Consider Whether Statutory
Immunities Or Privileges Bar Tort Liability
The question of officers' tort liability for responding to persons who are a danger to
themselves or others presents another important issue of California law: whether tort liability is
barred by any statutory immunities or privileges. Resolution of that legal issue may decide the
claims in the pending federal case without necessitating the resolution of the certified question.
Accordingly, amici curiae respectfully urge the Court to restate the question to allow for
consideration of any applicable statutory immunities and privileges. TheNinth Circuit has
recognized this Court's authority to reformulate the question posed and that theNinth Circuit' s
framing o f the question does not restrict this Court's consideration of the issues involved. (Order
at 8056; Rule 8.548(f)(5).)
Here, there are several California statutes providing for immunities and privileges that
would be pertinent to the tort liability determination. For example, the Legislature has enacted a
broad statutory framework governing public officers' intervention when persons pose a danger to
themselves or others. (Welfare & Institutions Code§§ 5000 etseq.) This statutory framework
provides for immunity from tort liability under certain circumstances. (E.g., id. § 5278.)
Moreover, various Government Code immunities could be relevant to the liability questions that
arise during these interventions. (E.g. , Gov. Code § 820.2 [immunity for discretionary acts]; id.
§ 821.6 [immunity for instituting proceeding],§ 855.6 [immunity for failure to make mental
examination]; id. § 855.8 [immunity for failure to diagnose mental illness]; id. § 856 [immunity
for decision whether to confine mentally ill person].) Finally, peace officers are privileged under
California law to use reasonable force in the course of their duties and in self-defense. (Penal
Code§§ 196, 835a.)
The applicability of these statutory immunities and privileges to interventions with
persons who pose a danger to themselves or others presents an important issue of California law.
This issue bears directly on the tort liability of the officers in the pending case - the ultimate
issue that would be be resolved by the Ninth Circuit's certified question. Therefore, we
respectfully propose the following wording of the question, which would permit resolution of
this liability question on grounds of duty, immunity, or privilege:
Whether under California negligence law, sheriffs deputies owe a duty of
care to a suicidal person when preparing, approaching, and performing a
welfare check on him, and the effect of related statutory immunities
and privileges.
Amici curiae recognize that this Court normally resolves immunity questions after
resolving duty questions. However, this Court also recognizes that judicial economy can favor
resolving an immunity question when that would eliminate a need to consider a more difficult
duty question. (Cruz v. Briseno (2000) 22 Cal.4th 568, 572 [citing cases].) The proposed
. wording would permit the Court to determine the most economical way to resolve the ultimate
issue. In addition, consideration of the various California statutes (and their immunity
provisions) pertinent to official interventions with mentally disordered persons would be helpful
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CITY AND COUNTY OF SAN FRANCISCO
OFFICE OF THE CITY ATIORNEY
Letter to the Hon. Justices of the California Supreme Court
Page 3
July 5, 2011
to the duty determination. (Thompson v. County ofAlameda (1980) 27 Cal.3d 741 ["role
imposed upon [public agency] by law" relevant to duty question].)
Regardless whether the question is accepted as theNinth Circuit has framed it, or
reframed as we have suggested or in some other way, the underlying issue presents an important
question of California law that would properly be decided by this Court.
Therefore, we respectfully urge the Court to grant the request, and to reframe the question
to permit consideration of statutory immunities and privileges.
Very?�
PETER J. KEITH, Deputy City Attorney
San Francisco City Attorney's Office
Counsel for the League of California Cities
and the California State Association of
Counties
cc:
Clerk, United States Court of Appeals for theNinth Circuit
Morris G. Hill, Senior Deputy County Counsel, Counsel for Petitioners
Alvin M. Gomez, Esq., Counsel for Respondents
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PROOF OF SERVICE
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I, MARY MARTIN, declare as follows:
I am a citizen of the United States, over the age of eighteen years and not a party to the above­
entitled action. I am employed at the City Attorney's Office of San Francisco, Fox Plaza Building,
1390 Market Street, Sixth Floor, San Francisco, CA 94102.
On July 5, 2011, I served the following document(s):
July 5, 2011 Letter to the Honorable Justices of the California Supreme Court
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on the following persons at the locations specified:
Thomas E. Montgomery, County Counsel
Deborah A. McCarthy, Assist. County Counsel
COUNTY OF SAN DIEGO
Office of County Counsel
County Administrative Center
1600 Pacific Highway, Room 355
San Diego, CA 92101-2469
Alvin M. Gomez, Esq.
GOMEZ LAW GROUP
89210 University Center Lane, Suite 550
San Diego, CA 92122
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Office of the Clerk
United States Court of Appeals for theNinth
Circuit
P.O. Box 193939
San Francisco, CA 94119-3939
in the manner indicated below:
BY UNITED STATES MAIL: Following ordinary business practices, I sealed true and correct copies of
the above documents in addressed envelope(s) and placed them at my workplace for collection and mailing with
the United States Postal Service. I am readily familiar with the practices of the San Francisco City Attorney's
Office for collecting and processing mail. In the ordinary course of business, the sealed envelope(s) that I placed
for collection would be deposited, postage prepaid, with the United States Postal Service that same day.
I declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct.
Executed July 5, 2011, at San Francisc
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Hayes, etc. v. County of San Diego, etc., et al.
US CofA 9th Circuit No. 09-55644; USDC Southern District No. 07-vc-1738-DMS
(JMA)
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