Overview: If the police come looking for a felon and throw a tear gas canister into your home, rendering it uninhabitable, do you have any recourse? The question was answered in Conway v County of Tuolumne where the Court of Appeal upheld the trial court, finding the County and its deputies were immune from liability under the Government Claims Act as they acted in their discretion, even though they were negligent in doing so.
If the police go to your home in search of a felon with a gun, fire a tear gas canister inside, totally destroying the home, what do you do? a) Nothing, it’s all good; b) look for another (furnished) home and clothes; c) pull your hair out (my answer), or d) sue their ass. Yes, (d) is the correct answer.
Son Shoots at Dad
George Conway was living with his parolee son, 51 year-old Donald, in a mobile home in Sonora. When two satellite TV service technicians arrived to perform an installation, Donald became “all angry.”
George called 911, and a dispatcher advised the Tuolumne County Sheriff’s Office that a felon prohibited from possessing a firearm had a .357 revolver, was intoxicated, and brandished the handgun, then shot at and chased his dad into a neighboring home. Donald was reported to be holed up in George’s mobile home.
The SWAT team was called to the scene. They tossed a mobile “throw phone,” which operates as a listening device, through a window, but Donald did not answer and nothing was heard from inside the mobile home.
The SWAT team then threw a tear gas canister inside. Eight minutes later they broke down the front door using a ram, put a diversionary device on the end of a flash bang pole, ignited it, and went into the home. No one was inside. Oops. The tear gas residue could not be removed and made the mobile home uninhabitable. Hey, sometimes that happens.
Homeowner Sues Tuolumne County
George the father sued Tuolumne County alleging the County had negligently fired tear gas into his mobile home when officers should have known his son Donald was not in the home.
Even though George called the Sheriff’s office in fear of his life after his son shot at him, does he have a case against the County for destroying his mobile home when Donald wasn’t even inside? After all, George didn’t do anything wrong – except raise a derelict son.
The Government is Immune
Tuolumne County defended George Conway’s lawsuit claiming it is immune from its actions. You are probably asking — why would the government and its Sheriff’s officers be immune when a private citizen isn’t?
There’s a logical answer. The Government Code provides that public employees are liable for their civil wrongs, their torts as we lawyers call them, and public entities are vicariously liable for the torts of their employees – unless…the public employee acted in his or her discretion even if such discretion is abused. Even if a mistake is made.
The issue in this case is whether the SWAT team’s actions were discretionary decisions that immunized the team and Tuolumne County from lawsuits under the Government Claims Act.
Discretionary Immunity Cases
The following police work cases were found to be discretionary decisions for which police officers were immune: The decision to pursue a fleeing vehicle, the decision to investigate or not investigate a vehicle accident, the failure to make an arrest or to take some protective action less drastic than arrest and the decision whether to remove a stranded vehicle.
Cases of where police officers were found not immune include, making an arrest when there was no probable cause and using unreasonable force when making an arrest or overcoming resistance to it. Where have we seen that lately?
SWAT Team off the Hook?
The Court of Appeal ruled that once the officers decided to arrest Donald, they had discretion to determine the means by which the arrests should be carried out, including a tear gas grenade.
The Court of Appeal ruling, seems to me, explains why there’s immunity for government employees, including police officers, to make critical decisions without fear of being sued: “The decision, requiring as it does, comparisons, choices, judgments, and evaluations, comprises the very essence of the exercise of “discretion” and we conclude that such discretions are immunized.”
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, mediation and other transactional matters. He may be reached at email@example.com or www.portersimon.com.
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