PETERSON v. CITY OF LONG BEACH

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Court of Appeal, Second District, Division 1, California.

Otis PETERSON and Lottie B. Peterson, Plaintiffs and Appellants, v. CITY OF LONG BEACH et al., Defendants and Respondents.

Civ. 49636.

Decided: August 24, 1977

Finch, Castello & Tennant, and David R. Finch, Campbell, for plaintiffs and appellants. Leonard Putnam, City Atty., and Robert E. Shannon, Deputy City Atty., for defendants and respondents.

Their son having been shot and killed as he fled from Long Beach police officers and refused their command to halt when the officers sought to apprehend him as a burglary suspect, plaintiffs sued the City of Long Beach and one of the officers for wrongful death. In a nonjury trial, the court found that the officer had acted reasonably and with good cause. Accordingly, the trial court denied recovery to plaintiffs. In this appeal from the resulting judgment, plaintiffs contend that the evidence establishes liability of the officer and city as a matter of law.

By reason of Kortum v. Alkire (1977), 69 Cal.App.3d 325, 138 Cal.Rptr. 26, filed while this appeal was pending, we conclude that on the facts as found by the trial court the use of deadly force to apprehend the suspect was not justified. Accordingly, we reverse the judgment.

On October 13, 1972, the apartment of Thomas Rabuchin was burglarized and his stereo equipment taken. As Rabuchin arrived at his carport the night of the burglary, he saw a tall black man wearing a Long Beach State letterman's jacket. Inquiries by Rabuchin and his roommate, also students at Long Beach State College, focused their suspicion on Roland Peterson.

On the afternoon of October 18, 1972, Rabuchin and his roommate went to apartment 325 at 5025 Pacific Coast Highway, the address purported to be that of Peterson. Rabuchin knocked on the door. When it was opened, he recognized the stereo equipment that had been taken in the burglary. Retreating from apartment 325 on the pretext that he would return later to see Peterson, Rabuchin contacted the apartment manager and then telephoned the Long Beach Police Department.

Rabuchin's call resulted in a series of police radio transmissions to the effect that a burglary was then in progress at apartment 325, 5025 Pacific Coast Highway.1 Officers Dennis Vershaw and John Finn, each driving alone in separate police cars and both in uniform, responded to the call. Other police units on the same frequency were alerted by the transmitted messages. Vershaw arrived at the apartment complex shortly before Finn. Four excited persons, one of whom was the apartment manager, told him to hurry, that the suspects were in the apartment and that one of them had gone to warn the others that the police were coming. Vershaw proceeded up a stairway to the third floor of the complex where apartment 325 was located. Finn, who arrived shortly after Vershaw, was told by the persons gathered at the entranceway to hurry and that his partner had gone upstairs. Finn followed the route taken by Vershaw.

As Vershaw emerged from the third floor exit of the staircase onto a balcony on which the various apartments on the third floor abutted, he saw a black man whom he detained at gun point and ordered to stand against a wall. Vershaw noted that a window to apartment 325 was open. Finn arrived and went to the door of apartment 325, knocking on it, and announcing in a very loud voice, ‘Police. Open the door.’

There was the sound of a number of persons ‘stampeding’ to the rear of apartment 325. Vershaw heard the sound of a sliding window or door being opened at the rear of the apartment. Believing that the suspects were escaping, Vershaw ran to a spot on the balcony where he could see the rear area of apartment 325. He saw a tall black man swing from the third floor and drop to the second floor balcony and then repeat the process to an inner courtyard of the building. There the man, following another who had used the same route, ran toward a breezeway exit.

Several times Vershaw shouted to the two fleeing persons, identifying himself as a policeman and telling them to halt. One suspect escaped through the breezeway. The second stopped momentarily and looked directly at Vershaw making ‘eye contact.’ He then continued his flight. Believing that the person was a burglar fleeing to avoid apprehension, Vershaw fired his pistol at him. The shot hit the suspect, Roland Peterson, in the head, killing him. Rabuchin subsequently identified Peterson as the person he had seen near the Rabuchin apartment at the time of the burglary.

Peterson's parents sued Vershaw and the City of Long Beach for wrongful death on the theory that Vershaw had acted negligently and unreasonably in firing to prevent Mpeterson's escape. At trial, they introduced in evidence a provision of the Long Beach Police Department's manual which provides that an officer may not discharge his firearm at an escaping felony suspect unless there is substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed and the crime of which he is suspected involved the use or threatened use of deadly force.

Concluding that a violation of the pertinent provision of the Long Beach police manual was not negligence per se, the trial court found that Vershaw reasonably believed that a burglary was in progress in apartment 325, that Vershaw had reasonable cause to believe that Roland Peterson had committed the burglary and was fleeing from the scene, that no means other than firing the shot were available to prevent Peterson's escape, and that the use of deadly force by Vershaw was justifiable. The trial court determined finally that Vershaw acted reasonably in firing the shot which killed Peterson. Accordingly, it entered its judgment for defendants.

In this appeal, plaintiffs contend that the record establishes Vershaw's negligence as a matter of law.

The judgment when entered was correct. Then the California law was that enunciated in Murphy v. Murray (1925), 74 Cal.App. 726, 241 P. 938, which held that a police officer may use the force reasonably necessary to prevent the escape of a person whom the officer reasonably and in good faith believed to be an adult who committed a felony. The provision of the Long Beach police manual limiting the use of deadly force was evidence of the standard of reasonableness but not controlling. (Vallas v. City of Chula Vista (1976) 56 Cal.App.3d 382, 387–388, 128 Cal.Rptr. 469, petn. for hg. den.) Thus, the trial court was empowered to determine the issue as one of fact and its decision drawing the inference of reasonable conduct being a rational one could not be overturned on appeal although the evidence also would have supported a contrary inference. (4 Witkin, Summary of Cal. Law (8th ed.), Torts, § 492.)

The situation changed on April 26, 1977. Then the First District of the Court of Appeal filed its opinion in Kortum v. Alkire, supra, 69 Cal.App.3d 325, 138 Cal.Rptr. 26. Kortum holds that, as a matter of law, a police officer is held to the same standard as a private citizen in using deadly force to arrest a felony suspect. (Id., at pp. 332–333, 138 Cal.Rptr. 26.) Hence, states Kortum, deadly force may not be used against a fleeing suspect ‘unless the felony is of the violent variety, i. e., a forcible and atrocious one which threatens death or serious bodily harm, or there are other circumstances which reasonably create a fear of death or serious bodily harm to the officer or to another.’ (Id., at p. 333, 138 Cal.Rptr. at p. 31.) By Kortum's standard, a burglary committed under circumstances not creating a fear of great bodily harm is not a crime which permits the use of deadly force to apprehend the fleeing burglar. (People v. Ceballos (1974) 12 Cal.3d 470, 479, 116 Cal.Rptr. 233, 526 P.2d 241.)

Kortum does not cite either Murphy or Vallas. Effectively, however, Kortum overrules Murphy and disapproves the result in Vallas.

We are required to choose between the Kortum and Murphy-Vallas rules in determining the case at bench. Conceding an uneasiness with the Kortum principle, we consider it binding upon us. For what it is worth, the Supreme Court has denied hearing in Kortum despite its departure from prior law.2 Murphy suffers from the infirmities of age and is somewhat suspect by reason of developments in decisional law since it was decided in 1925. (See analysis in Kortum, 69 Cal.App.3d at pp. 330–332, 138 Cal.Rptr. 26.) Vallas turns upon rejection of treatment of a police manual provision limiting deadly force to arrest as a statute, ordinance, or regulation the violation of which is negligence as a matter of law. The theory on which Kortum turns was thus not presented to the Vallas court.

The square holding in Kortum overrides any implication from the result in Vallas. The recent decision in Kortum controls over the ancient holding in Murphy. Thus, whatever our personal view, Kortum is persuasive and requires reversal of the case at bench.

Unquestionably, Kortum grants a license to burglars and other ‘nonviolent’ felons to flee apprehension. That problem is one that should be addressed by the Legislature or our Supreme Court. Stare decisis is already an over-eroded doctrine. We do not propose to erode it further here.

As applied to the case at bench, Kortum dictates reversal of the judgment. There is no evidence that Vershaw had any reason to believe that the purported ‘burglary in progress' was one committed under circumstances creating a fear of great bodily harm. Hence, the Kortum rule declares that the use of deadly force to apprehend the burglar was excessive as a matter of law.

The judgment is reversed.

I respectfully dissent.

The majority opinion in reversing the judgment holds that under the facts of the case at bench Officer Vershaw was negligent as a matter of law relying on the recent case of Kortum v. Alkire (1977), 69 Cal.App.3d 325, 138 Cal.Rptr. 26.

I would affirm the judgment concluding (1) that Officer Vershaw was not negligent as a matter of law; (2) that the negligence issue is a question of fact; (3) that the undisputed facts overwhelmingly support the judgment; (4) that the trial judge properly applied the law; and (5) that Kortum is inapplicable and not binding and even if applicable should not be applied retroactively.

Since this is a case of first impression, a more detailed word picture of the procedural and factual background of the case appears warranted.

THE CASE AT BENCH

On February 21, 1973, plaintiffs/appellants Otis Peterson and Lottie B. Peterson filed a civil complaint for wrongful death in the superior court naming as defendants the City of Long Beach, the Long Beach Police Department, Chief of Police William J. Mooney, and Officers Dennis Vershaw and John Finn (respondents herein).

The complaint prayed for $1 million damages and alleged that on October 18, 1972, their son, Roland Peterson, was shot and killed as a proximate result of the negligence of Officer Vershaw in discharging his firearm.

On April 6, 1973, defendants filed an answer denying, generally and specifically, the allegations in the complaint of negligence, proximate cause and damages. In addition the answer set forth separate and distinct affirmative defenses to the effect (1) that defendants Vershaw and Finn were duly appointed police officers of the City of Long Beach and peace officers of the State of California, in uniform and engaged in their regularly assigned duties in that capacity; that they were informed and believed and had reasonable cause to believe decedent Roland Peterson had committed a burglary in violation of Penal Code section 459, a felony; that defendant Vershaw attempted to arrest Roland Peterson and he knew or should have known that he was being arrested yet he fled and continued to flee to avoid arrest; that the force used by defendant Vershaw in effecting the arrest and preventing the escape was reasonably necessary, proper and justifiable under the circumstances; (2) that decedent Roland Peterson's negligence, carelessness and recklessness proximately caused and contributed to his own death which is imputed to plaintiffs, barring recovery; and (3) that plaintiffs are barred from recovery pursuant to California Government Code sections 820.21 and 815.2, subdivision (b).2

On February 19, 1976, all counsel waived a jury trial and the following undisputed evidence was introduced at the court trial:

Officer Dennis Harold Vershaw called as a witness by plaintiffs under Evidence Code section 776 testified as follows: that he was a police officer for the City of Long Beach for 13 years; that on October 18, 1972, at approximately 4:15 p. m. while on patrol duty in uniform he received a radio call indicating that there was a burglary in progress, with suspects there now, at 5025 East Pacific Coast Highway; that the actual communication received was ‘Unit 18, Unit 18 and Unit 5, Unit 5, to back a 459, suspect there now’; that the terminology in the message was standard and indicated that a burglary was in progress at that time; that the fact that a unit was assigned to back up another unit indicated a sense of urgency; that shortly another communication was broadcast: ‘It's supposed to be a 459 now, suspect there now,’ which indicated a burglary was in progress.

Officer Vershaw further testified that he was the first police officer to arrive at the scene and he observed four people at the entrance to the location of the apartment complex; that when he exited his vehicle, all of these individuals seemed to be talking at the same time, telling him to hurry, indicating that the suspects were up in the apartment, and that one of them had just gone up to warn the others that police were coming; that one of these four individuals, a female, identified herself as the manager of the apartments; that he was directed and ran to apartment 325 on the third floor believing that there was a burglary in progress with the suspects inside the apartment.

Officer Vershaw stated that when he arrived at the apartment, he observed an open window and formed an opinion that entry had been made to the apartment and a burglary was in progress so he drew his service revolver; that he then saw an individual who fit the description of one of the suspects broadcast by the dispatcher come around the corner of the third floor landing to the side of apartment 325; that this suspect refused to heed his command to move against the wall until he pointed his revolver at him, at which time the individual reluctantly turned and placed his hands against the wall; that as he approached this suspect to frisk him, Officer John Louis Finn arrived and ran over to the front door of the apartment; that he (Officer Vershaw) heard Officer Finn yell ‘Police, open up,’ and then heard the sound of people in the apartment running toward the rear of the apartment and a sound like a sliding door opening at the rear; that he (Officer Vershaw) believed the burglars were attempting to eacape from the rear of the apartment so he ran along the third floor landing at the side of apartment 325.

He (Officer Vershaw) testified that as he ran toward the landing to the side rear of the apartment, he had his gun drawn but did not intend to shoot anyone; that when he reached the side rear of apartment 325, he looked down and observed two individuals jumping to the ground floor; that as soon as he saw these individuals he ‘hollered’ for them to stop and to stop where they were; that he yelled this several times since he believed they were burglars fleeing to avoid apprehension; that he was in full uniform and was absolutely certain that the individuals were in a position to hear him yelling for them to halt; that the second individual, later determined to be Roland Peterson, continued to run along the ground floor away from him after being commanded to halt; that after he ordered Peterson to halt at least twice, Peterson turned and looked back at him making eye contact; that there was no question in his mind that Peterson saw him; that then Peterson turned back, accelerated his speed and began to turn to the right; that he (Officer Vershaw) believing that Peterson was going to disappear from sight and escape fired his weapon once, striking Peterson.

Officer Vershaw further stated that at the time he fired his weapon, he believed that he had no other means to stop Peterson, and further believed that he was effectuating the arrest of an adult burglary suspect who was attempting to avoid apprehension; that he formed his intention to pull the trigger a split second before Peterson was about to round the corner; that during that split second, the policy of the Long Beach Police Department relating to the use of firearms did not come to mind; that he believed at the moment he pulled the trigger that Peterson was an escaping felon, and that he had no other means to capture the man or prevent his escape; that in his police academy training he was taught that he had a right to use deadly force upon a fleeing felon by virtue of the provisions of the state Penal Code; that at the moment he fired, he didn't know whether Peterson had a weapon and didn't know whether there was a substantial risk that the person he was going to arrest would cause death or serious bodily harm if the apprehension was delayed.

Officer John Louis Finn called as a witness by the plaintiffs pursuant to Evidence Code section 776 testified as follows: that he was a police officer for the City of Long Beach and was so employed for 14 years; that on October 18, 1972, at approximately 4 p. m. when he was alone in a patrol car a radio message was received, ‘459, suspects there now,’ meaning there was a burglary in progress with suspects there now. The dispatcher described one of the suspects as a male Negro, 6–4, 195 to 200 pounds, having a black moustache and a beard and indicated that there were three other black male suspects present at the location; that by the time he arrived at the location, Officer Vershaw had apparently already arrived and was inside the apartment complex, out of his sight.

Officer Finn further testified that when he arrived at the apartment complex he was met by several excited people who directed him into the apartment saying, ‘Hurry it. Your partner is up there. You better hurry’; that he ran into the apartment building and proceeded to apartment 325 on the third floor; that as he approached the top of the steps he observed Officer Vershaw searching a male who fit the general description originally given on the radio as one of the suspects; that he then noticed that the door to apartment 325 was ajar; that he ran to the door and it was almost slammed on his fingers; that he then knocked on the door and heard a voice inside say, ‘Who is there?’ and he responded, ‘Police, open the door’; that he continued knocking on the door and heard scuffling from within—sounds indicating to him that people were leaving the apartment from the rear; that he slid back a screen adjacent to the door, put his hand through, unlocked and opened the door; that as he opened the door, he saw what appeared to be the hand of a black person leaving the sliding glass doors in the back balcony area; that as he stood in the doorway, he caught a fleeting glimpse of Officer Vershaw running past him down the breezeway and heard Officer Vershaw yelling, ‘Halt, stop, halt, police’; that he heard Officer Vershaw yell these terms at least three to four times; that Officer Vershaw's words were very audible and he had no trouble hearing them; that 15 to 20 seconds after Officer Vershaw left his view, he heard a shot fired and ran over thinking Officer Vershaw was in trouble and saw him standing on the railing.

Witness Tom Rabuchin called by the defense testified as follows: that in October 1972 he was a student at Long Beach State University and that his apartment at 933 Roswell Street was burglarized by Roland Peterson and others on October 13, 1972, in which a dual turntable, two speakers, a receiver, a Sony tape deck and a Bulova watch were taken; that he observed Peterson, a man whom he had never met, leaving his residence immediately after the burglary; that upon determining the location of Peterson's residence to be 5025 Pacific Coast Highway, apartment 325, he went to that location on October 18, 1972, at about 4 p. m. with his roommate Dennis Ruby and knocked on the door; that a curtain opened and someone inside said, ‘Two whities outside,’ then ‘Who is it, and what do you want’; that he (Rabuchin) replied, ‘My name is Tom, and I was looking for Roland; I had to talk to him’; that the individual inside then indicated that Roland was not present and the door opened somewhat; that he looked in and saw that his stereo phonograph and tape recorder were in the corner of the room and had distinguishing marks consisting of a chip in the corner of a special cover and a hole in the corner of the tape recorder which was chewed by his dog.

Rabuchin stated that he then ran downstairs into the apartment manager's office and called the police; that when Officer Vershaw arrived and began to question them outside of the apartment complex, a door to the elevator opened and two of the four men he had seen in the third floor apartment began to walk out; that they appeared to see him (Rabuchin) talking to the uniformed officer and ran back into the elevator and upstairs; that he recognized these individuals as two individuals who had been in the apartment at the time he had talked to them minutes earlier; that during this time, he was excited and did not explain the circumstances of the situation to Officer Vershaw; that when he observed the two individuals go back up the elevator, Dennis Ruby said: ‘Did you see those guys. They came out’; that he (Rabuchin) said to Ruby, ‘Yes. We are going right now . . . Upstairs on the third floor. Let's go. They are going to be going back and warn them and they are going to, you know, close the door and I don't know what they were going to do’; that he said to Officer Vershaw, ‘Let's get up there right now, they're going to warn them, they're going to get out of there with that stuff’; that at no time did he ever tell Officer Vershaw prior to the shooting that the burglary had taken place some five days before at another location.

Rabuchin further testified that from a location on the second floor he saw Officer Vershaw confront an individual who appeared to be giving the officer a bad time; that he (Rabuchin) went downstairs to the first floor landing from which location he could hear Officer Finn knock on the door and say, ‘Open up, this is the police,’ in a loud tone of voice which he (Rabuchin) had no trouble hearing; that after Officer Finn made this statement, he could hear running and doors slamming from inside the apartment unit followed by a great deal of confusion and some running out the back; that he then heard a thump and some running again, and then some more running and then a yell, ‘Hold it, hold it right there, stop, stop,’ three or four times; that the commands were given very loudly and he had no trouble hearing them from the first floor; that after the fourth command, he heard a shot; that later he and his roommate went into the apartment and confirmed that his stereo equipment had been thrown into a closet; that on leaving the apartment he observed Peterson being taken away on a stretcher and recognized him as the man seen leaving his apartment following the burglary.

Plaintiffs Lottie B. Peterson and Otis Peterson of Oakland, California, mother and father of decedent Roland Peterson, testified that on October 18, 1972, their twenty-year-old son Roland Peterson was attending Long Beach State University on a grant; that he was in his third year of college and living at 5025 East Pacific Coast Highway, apartment 325, with a roommate named Sidney Crowder.

During the trial plaintiffs moved the court to exclude evidence (pursuant to Evid. Code, § 352) that after the shooting the officers obtained a search warrant and located some narcotics and some possible stolen merchandise in the apartment in which decedent Peterson lived with Crowder and from which Peterson exited just prior to the shooting. The court admitted the evidence ‘for the limited purpose of showing . . . the fleeing aspect as a circumstance of the events' in question.

The trial court also admitted into evidence section 4242 of the Long Beach Police Department Manual as plaintiffs' Exhibit 3 (hereinafter LBPDM section 4242).3

On March 25, 1976, the trial court, following the introduction of evidence and on stipulation of the parties, dismissed the complaint with prejudice as to defendants William J. Mooney, Chief of Police of Long Beach, and Officer Finn.

Thereafter, the trial court found in favor of defendants City of Long Beach and Officer Vershaw, outlining his reasoning from the bench4 and later signed and filed written findings of fact and conclusions of law5 which in pertinent part found that at the time Officer Vershaw fired his service revolver he had reasonable cause to believe that Peterson was a felon fleeing from the scene of a burglary and since Peterson refused to halt on command that no other means was available to prevent his escape; that although Officer Vershaw failed to comply with LBPDM section 4242 relating to the discharge of firearms, the regulation constituted a minimum standard of care in respect to the use of firearms; and that Officer Vershaw, under all the circumstances, acted as a reasonable and prudent police officer and used justifiable deadly force permitted by Penal Code section 196.

Plaintiffs appeal from the judgment in favor of defendants City of Long Beach and Officer Vershaw.

CONTENTION

In their opening brief on appeal plaintiffs state they do not dispute the holding that the violation of police manual procedure (LBPDM § 4242) will not be deemed the equivalent of the violation of a statute or ordinance.

The central thrust of plaintiffs' assignment of error on appeal is that the trial court improperly applied Penal Code section 196 (hereinafter section 196) and Murphy v. Murray (1925) 74 Cal.App. 726, as controlling thereby arriving at a judgment not supported by the evidence.6

DISCUSSION

In the instant case the statutory law upon which the trial court primarily based its decision is section 196.

Section 196 provides: ‘Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, . . . when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.'7

The case of Murphy v. Murray, supra, 74 Cal.App. 726, 241 P. 938 (petn. for hg. den. Dec. 26, 1975), relied on by the trial court is closely analogous factually in many respects to the case at bench.

In Murphy plaintiff father sued acting Police Chief A. W. Murray and Police Officer B. C. Croft for damages for the death of his son caused by Officer Croft. The evidence showed that Officer Croft was informed that a burglary had been committed at a particular home and to go there as quickly as possible. After he arrived at the home and was questioning the occupant about the burglary, he was advised that two fellows were running away from the rear of the house. Officer Croft pursued and young Murphy (later determined to be a 16-year-old boy engaged in a Halloween prank which involved cutting a screen of the house purportedly being burglarized, entering the back porch and turning off the electric current, leaving the house in darkness) failed to heed Officer Croft's order to stop and ran into a grove of trees. Officer Croft fired into the grove of trees, striking the boy and resulting in his death.

The trial court entered judgment in favor of defendant Police Chief Murray but awarded money damages against Officer Croft who fired the shot.

The Court of Appeal in reversing the judgment against Officer Croft stated ‘the primary question to be determined is whether the peace officer had reasonable or probable cause for believing that the party whom he attempted to arrest had in fact committed a felony.’ (74 Cal.App. at p. 730, 241 P. at p. 939.)

In answering the above question in the affirmative as a matter of law, the Murphy court stated at page 729, 241 P. at page 939:

‘[W]hen a police officer is seeking to arrest one charged with crime he is not acting in self-defense, but in defense of the state. The law requires him to make arrests under certain circumstances, and if he merely assumes the position of a private citizen protecting himself against harm, he is neglectful of the duty imposed upon him and is open to censure therefor. . . . When a peace officer acting under this authority makes an arrest of one who afterward proves not to have committed a felony, or when in attempting to make such an arrest he causes injury to the party arrested, his liability for damages therefor depends upon the question whether he acted in good faith and had reasonable grounds for believing that the person did commit the felony. . . .’

The majority opinion in the instant case concludes that at the time the judgment was entered by the court below it was correct and Murphy controlled. However, it reverses the judgment concluding that Officer Vershaw is now negligent as a matter of law in reliance on the recent case of Kortum v. Alkire, supra, 69 Cal.App.3d 325, 138 Cal.Rptr. 26 (filed April 26, 1977) which it considers binding authority under the doctrine of stare decisis.

I would affirm the judgment concluding (1) that Murphy is still the controlling case law in California and (2) that the language relied on in Kortum which in turn relies solely on language in Long Beach Police Officers Assn. v. City of Long Beach (1976) 61 Cal.App.3d 364, 132 Cal.Rptr. 348 (filed Aug. 19, 1976), is inapplicable. The language in Kortum is therefore (a) not binding, (b) not persuasive, (c) not consistent with the basic constitutional concept of separation of powers, and (d) even if it constituted persuasive authority it should not operate retroactively.

Kortum Not Binding

We are no more bound by Kortum under the doctrine of stare decisis than Kortum was in ignoring Murphy and disapproving the result in Vallas v. City of Chula Vista (1976) 56 Cal.App.3d 382, 128 Cal.Rptr. 469, and the language in People v. Walker (1973) 32 Cal.App.3d 897, 903, 108 Cal.Rptr. 548, which stated that the term ‘felony’ in Penal Code sections 197 and 837 refers to the statutory definition of such an offense and nothing more. Particularly so when the language in Kortum relied upon by the majority opinion in the instant case is not the law of the case but merely ‘found,’ was unnecessary to a determination of the issue presented, and is not supported by constitutional, statutory or judicial authority.

This court and all of the courts from which the above referred to decisions emanated are of equal jurisdiction.

Kortum Not Persuasive

Kortum and Long Beach, upon which Kortum relies, constitute a flimsy house of judicial cards which on careful scrutiny collapses. Thus the foundation upon which the majority opinion in the instant case based its reversal is nonexistent.

The Kortum and Long Beach cases both involve actions brought by special interest groups at opposite ends of the spectrum seeking a court invalidation of locally promulgated police regulations pertaining to the use of deadly force by police officers in apprehension of suspects following the commission of nonviolent felonies.

Neither Kortum nor Long Beach involve civil litigation in which money damages are sought by reason of alleged negligent conduct on the part of police officers while acting in the line of duty in attempting to apprehend suspects of nonviolent felonies as present in the instant case.

In Long Beach (filed Aug. 19, 1976) the Long Beach Police Officers Association on behalf of approximately 650 Long Beach police officers brought an action against the City of Long Beach and Chief of Police William J. Mooney for declaratory and injunctive relief to restrain enforcement of LBPDM section 4242 relating to the display and discharge of firearms by police officers contending that it was unconstitutional and preempted by state law.8 It should be noted that an identical copy of LBPDM section 4242 contested in Long Beach was admitted into evidence in the case at bench as plaintiffs' Exhibit 3 and considered by the court.

The trial court in Long Beach found in favor of defendants. The Court of Appeal affirmed holding that the regulation (LBPDM § 4242) was a reasonable regulation within the powers of the city manager to prescribe, not in conflict with or preempted by state law, not unconstitutional, and acceptable as local policy guidance.

In Kortum several citizens brought an action against the Pleasant Hill Police Department and city officials seeking injunctive relief and a judgment declaring certain police regulations invalid. The court was confronted with a police regulation less restrictive as to police conduct than in Long Beach in that the regulation in Kortum authorized the use of deadly force by police in the apprehension of felony suspects. The regulations contained language exactly the same as that of Penal Code section 835a providing that any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.

The trial court granted summary judgment in favor of defendants, determining that the police regulations and practices under attack were not unlawful. Penal Code sections 196, subdivision 3, 197, subdivisions 1, 2 and 4, 835a, and 837 on their face authorize the use of deadly force by a police officer in resisting an attempt to permit, or in arresting the perpetrator of, a violent or nonviolent felony.

The Court of Appeal in Kortum in affirming the summary judgment held that the regulations of the Pleasant Hill Police Department conform to the statutory provisions of California law and are neither unconstitutional nor invalid ‘since [police officers'] conduct in the application of the regulations here involved must conform to the judicial interpretation of those statutes upon which such regulations are based.’ (69 Cal.App.3d at p. 334, 138 Cal.Rptr. at p. 31, italics added.)

The rub comes in Kortum when the court proceeds to gratuitously supply that ‘judicial interpretation’ by stating that the courts of California have construed the California Penal Codes in such a manner as to ‘prohibit the use of deadly force by anyone, including a police officer, against a fleeing felony suspect unless the felony is of the violent variety, i. e., a forcible and atrocious one which threatens death or serious bodily harm, or there are other circumstances which reasonably create a fear of death or serious bodily harm to the officer or to another,’ (69 Cal.App.3d at p. 333, 138 Cal.Rptr. at p. 31, italics added) and ‘Consequently, the deadly force authorized by such statutes and regulations may be resorted to only if the felony is a ‘forcible and atrocious one’ which threatens death or serious bodily harm or there are other circumstances which reasonably create a fear of death or serious bodily harm to the officer or other person. (People v. Ceballos, supra, 12 Cal.3d 470 at p. 479, 116 Cal.Rptr. 233, 526 P.2d 241.)' (Kortum v. Alkire, supra, 69 Cal.App.3d 325, 334, 138 Cal.Rptr. 26.)

The Kortum court in making the giant leap between prohibited conduct on behalf of ‘private citizens' to ‘police officers' acting in the line of duty said at page 331, 138 Cal.Rptr. at page 29–30: ‘Since Jones [People v. Jones, 191 Cal.App.2d 478, 12 Cal.Rptr. 777], Piorkowski [People v. Piorkowski, 41 Cal.App.3d 324, 115 Cal.Rptr. 830] and Ceballos were all cases involving the use of deadly force by private citizens, it has been argued by the defendants herein that the rationale of those cases is inapplicable to police officers acting in the line of duty. However, this argument was put to rest in Long Beach Police Officers Assn. v. City of Long Beach (1976) 61 Cal.App.3d 364, 132 Cal.Rptr. 348, . . ..’ (Italics added.)

Thus, the Kortum court relied upon the Long Beach case as its sole authority, judicial or otherwise, for extending the prohibition of the use of deadly force in apprehending suspects of nonviolent crimes from ‘private citizens' to ‘police officers' acting in the line of duty.

The Long Beach case should be narrowly construed. The language in Long Beach relied on in Kortum was gratuitous and not necessary to a determination of the issue presented. In fact, except for that gratuitous language the Long Beach case supports the trial court's decision in the instant case.

The Court of Appeal in Long Beach was aware that four civil lawsuits were pending in which the City of Long Beach and individual police officers were named as defendants (one of which may be the case at bench) as reflected in footnote 17 at page 376, 132 Cal.Rptr. at page 355 which states: ‘In this case it was stipulated ‘[t]hat presently there are four lawsuits for civil damages pending naming the City of Long Beach and individual police officers as defendants which allege that the use of firearms by said officers caused or contributed to plaintiff's damages.’ That stipulation does not indicate whether any of the plaintiffs in these cases based their case upon violation of section 4242. It is equally likely that the purpose of the stipulation was to show that the city had a financial interest in encouraging a cautious use of firearms by its officers.'

None of the above civil lawsuits were before the Long Beach court. The only issue before the court was whether or not LBPDM section 4242 was unconstitutional and inconsistent with and preempted by state law.

It is important to note, however, that in Long Beach the reviewing court in answering plaintiff police officer's contention that such regulation (LBPDM § 4242) could be used in a civil suit against an officer for wrongful death or injury, as evidence of failure to exercise due care toward the person shot (as present in the case at bench) stated that ‘the purpose of the regulation is to provide training and guidance to the officer so that he will not get into a situation where a plaintiff could claim that he used excessive force . . . The defendant in such a suit is free to argue that the regulation is more stringent than the minimum standard of care required by law,’ 61 Cal.App.3d at p. 376, 132 Cal.Rptr. at p. 355, italics added) and that such regulations restricting the display and discharge of firearms by police officers would be permissible evidence of the relevant standard of care, but would not per se create a basis for liability.

In addition it is important to note that the Long Beach court in rejecting the parties' diametrically opposed positions9 on the issue of preemption by state law and upholding the city's right under its police power to enforce its own regulations on the subject, if they are not in conflict with state law and the state has not preempted the field, pointed out that as recently as 1971 ‘the Legislature added section 832 to the Penal Code, requiring all persons described in that chapter as peace officers to receive training in the exercise of powers of arrest and in the carrying and use of firearms, . . . [and] the legislation embodying that provision also carried this statement: ‘It is the intent of the Legislature in enacting this act that the minimum standards described in Section 2 of this act shall be designed to raise the level of competence of peace officers where necessary and are not intended to supersede state or local law enforcement policy regarding the use of firearms or the exercise of powers to arrest.’ (Stats.1971, ch. 1504, p. 2975, § 3; italics added.) [¶] The language of the Penal Code provisions does not mandate the use of deadly force in certain described situations, it merely permits it. . . .' (61 Cal.App.3d at p. 372, 132 Cal.Rptr. at p. 352–53, italics added.)

For the above reasons I conclude that Kortum is not persuasive.

Kortum and Separation of Powers

Kortum has in effect rewritten section 196, which pertains to ‘public officers' by actually inserting the words ‘forcible and atrocious' before the word ‘felony.’ This rewriting of section 196 was not necessary to a resolution of the issue presented in Kortum, was not arrived at on constitutional grounds or by construing the legislative intent. It was arrived at solely from language found in Long Beach, which language in turn was not necessary to a resolution of the issue presented in that case and not predicated on any constitutional, statutory or judicial authority.

The only authority for the gratuitous philosophical statements in both Kortum and Long Beach are the cases of People v. Jones (1961), 191 Cal.App.2d 478, 12 Cal.Rptr. 777; People v. Piorkowski (1974), 41 Cal.App.3d 324, 115 Cal.Rptr. 830, and People v. Ceballos (1974), 12 Cal.3d 470, 116 Cal.Rptr. 233, 526 P.2d 241, all of which involve the use of deadly force by ‘private citizens'10 and none of which involve the use of deadly force by ‘police officers' acting in the line of duty under section 196.

In my view when Kortum rewrote section 196 by inserting the words ‘forcible and atrocious' before the word ‘felony’ without resorting to constitutional, statutory or other proper judicial authority, it did violence to the constitutional doctrine of separation of powers as reflected in the Constitution of the State of California, article III, section 3, and article IV, section 1.

Article III, section 3 of the California Constitution provides as follows: ‘The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.’

Article IV, section 1 of the California Constitution provides as follows: ‘The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum.’

Here, the California Legislature enacted section 196 as written in black ink in the book and it and only it or the people under the initiative process have the power to change it by inserting the words ‘forcible and atrocious' before the word ‘felony.’

I agree with that portion of the Long Beach decision in which the Court of Appeal at the very outset stated: ‘The formulation of a policy governing use of deadly force by police officers is a heavy responsibility involving the delicate balancing of different interests: the protection of society from criminals, the protection of police officers' safety, and the preservation of all human life if possible. This . . . is best exercised by the appropriate legislative and executive officers. The effort of the appropriate officials of the City of Long Beach [through LBPDM section 4242] to make that determination in the interests of its citizens and its police officers should be upheld if it is consistent with state law and constitutional standards.’ (61 Cal.App.3d at p. 371, 132 Cal.Rptr. at p. 351.)

The Long Beach court went on to state that ‘While it might be desirable to make uniform the shooting policies of neighboring jurisdictions or even statewide, this can not [sic] and should not be accomplished by judicial fiat. . . . [¶] . . . The justifiable homicide sections provide a defense to the officer in a criminal prosecution for homicide. The regulations [LBPDM section 4242] in no way remove this defense. They merely provide cautionary guidelines for the officer.’ (61 Cal.App.3d at p. 373, 132 Cal.Rptr. at 353, fn. omitted, italics added.)

In the civil litigation at bench in which plaintiffs seek money damages for alleged negligent conduct by Officer Vershaw, the trial court observed: ‘Defendant Vershaw in [the trial court's] opinion did what ninety-nine out of one hundred officers, reasonably prudent, would have done when confronted by the same circumstances and possessed of the same information,’ and ‘If the Penal Code [section 196] justifies a killing, should the civil law in turn mulct a defendant in damages for the same justifiable conduct? I think not. . . . To allow the plaintiffs herein recovery would be tantamount to placing a reward on lawlessness and a bonus on such lawlessness.'11 The majority opinion points out that ‘Unquestionably Kortum grants a license to burglars and other ‘non-violent’ felons to flee apprehension.' The above statements are illustrative of the far reaching ramifications on our society of Kortum and the majority opinion in the case at bench working in tandem.

Our state Constitution provides that: ‘All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.’ (Art. II, § 1.) Any alterations of section 196 which might be so drastically detrimental to the public security should be resolved by the people through their elected representatives in the state Legislature in conformance with the constitutional doctrine of separation of powers.

Not only is the legislative branch of government the branch designated by the state Constitution to perform any such drastic surgery on section 196 but it is the best qualified and equipped with its committees, research staffs, access to statewide statistics, and open debate to maintain that delicate balance between the ‘protection of society from criminals, the protection of police officers' safety, and the preservation of all human life if possible.’

The Legislature in maintaining that delicate balance can obtain statistics statewide to ask and answer such questions as: Should what was simple be made complex? What are the ‘forcible and atrocious' felonies? What are the nonviolent and violent felonies? For example, if an individual went into a bank with one hand in his pocket which contained a pen or a toy pistol and handed a note to the teller demanding money which she gave him and the individual was shot by police while trying to flee and avoid apprehension, would that constitute a nonviolent felony creating a basis of liability for the individual to recover damages?

For another example, taking burglary alone, how many burglaries are reported in California each year at what total loss to the law-abiding citizens? How many fleeing burglary suspects are apprehended by police officers by reason of the fear of being shot? How many fleeing burglary suspects are shot for failing to halt when ordered? How many were fatal and how many rendered the suspect temporarily immobile? How many innocent law-abiding citizens were bludgeoned, strangled, stabbed or shot to death by burglars? How many police officers were killed or wounded in attempting to apprehend burglary suspects in the homes or businesses? How many police officers who were chasing burglary suspects were suddenly turned upon by the suspect and killed or wounded? How many police officers in attempting to apprehend a burglary supect and while trying to take him into custody were injured or wounded or shot with his [the police officer's] own pistol? How many civil cases are pending statewide in which police officers are being sued by burglary suspects for money damages? How many potential civil cases are there statewide and at what potential cost to the taxpayers?

The legislative committees after assembling the necessary statistics and asking and answering all of the above type questions as to every nonviolent type of felony will undoubtedly consider the function and effect of the police officer's service revolver.

Unquestionably a police officer's service revolver is important to the performance of his duties. When a lone officer is confronted by superior numbers or a potentially explosive situation, it serves as an equalizer and a pacifier. During the apprehension of individuals suspected of nonviolent and violent crimes, the service revolver extends the reach of the officer's authority to the sound of his voice and the range of his weapon.

In the last analysis, the Legislature is the proper branch of government to determine whether or not California police officers when responding to urgent calls from lawabiding, taxpaying citizens reporting burglaries in progress should proceed post haste to apprehend the suspect(s), wearing track shoes and armed only with water pistols.

Kortum Should Not Operate Retroactivelt

Finally, even if Kortum was controlling, it should not operate retroactively.

As noted in the majority opinion, on October 18, 1972, when Officer Vershaw, acting in the line of duty, fired the fatal shot, section 196, as presently written in black ink, and Murphy constituted the applicable statutory and case law.

The Kortum court said at page 334, 138 Cal.Rptr. at page 31 ‘[that police officers'] conduct in the application of [locally promulgated police regulations] must conform to the judicial interpretation of those statutes upon which such regulations are based.’ (Italics added.)

It would be patently unfair to now hold that Officer Vershaw, facing a $1 million damage suit, was negligent as a matter of law based on Kortum. This means that Officer Vershaw was charged with the responsibility when the shot was fired on October 18, 1972, of ‘conform[ing] to the judicial interpretation’ placed on the Penal Codes by the Kortum court which decision was not even in existence until April 1977, four and one-half years later. Such a result would be grossly unfair.

CONCLUSION

For the reasons stated, I conclude (1) that the trial court properly admitted LBPDM section 4242 into evidence and correctly held it was not controlling (Vallas v. City of Chula Vista, supra, 56 Cal.App.3d 382, 128 Cal.Rptr. 469, ptn. for hg. den.; Long Beach Police Officers Assn. v. City of Long Beach, supra, 61 Cal.App.3d 364, 132 Cal.Rptr. 348); (2) that the trial court properly applied section 196; (3) that Kortum is not applicable and Murphy is still controlling; and (4) that overwhelming evidence supports the judgment.

I would therefore affirm the judgment.

FOOTNOTES

1.  Plaintiffs' answers to contention interrogatories established that plaintiffs did not base their claim on any error in the radio transmission. The trial court, therefore, barred evidence of the content of Rabuchin's telephone call. That ruling is not asserted to be erroneous by plaintiffs in this appeal.

2.  The Supreme Court minute order (No. 19, Cal. Official Reports, p. 8) reads: ‘The request for this court to grant a hearing sua sponte is denied. Richardson, J., is of the opinion that the request should be granted.’

1.  Government Code section 820.2 provides:‘Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.’

2.  Government Code section 815.2, subdivision (b), provides:‘Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.’

3.  LBPDM section 4242 reads:‘The policy of the Department governing the display and discharge of firearms is that members shall exhaust every other reasonable means of apprehension before resorting to the use of a firearm.‘An officer shall not discharge a firearm in the performance of his police duties except under the following circumstances and only after all other means fail:‘* In the necessary defense of himself from death or serious injury when attacked.‘* In the necessary defense from death or serious injury of another person attacked.‘* To effect an arrest, to prevent an escape, or to recapture an escapee when other means have failed, of an adult felony suspect when the officer has reasonable cause to believe that (a) the crime for which the arrest is sought involved conduct including the use or threatened use of deadly force and (b) there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed.‘* To kill a dangerous animal or one that is so badly injured that humanity requires its removal from further suffering and other disposition is impractical.‘* To give an alarm or to call assistance for an important purpose when no other means can be used.‘* For target practice at an approved range.‘An officer shall not fire at persons known to be, or suspected of being, juveniles (persons under 18 years of age) except (a) in the necessary defense of himself from death or serious injury when attacked or (b) in the necessary defense from death or serious injury of another person attacked.‘Firearms shall not be discharged under the following circumstances:‘* As a warning.‘* At moving or fleeing vehicles unless (a) in the necessary defense of himself from death or serious injury when attacked or (b) in the necessary defense from death or serious injury of another person attacked.’

4.  Following are the pertinent extracts from the reporter's transcript outlining the court's decision for purposes of preparing findings:‘THE COURT: What do you think, Mr. Marpet, is the obligation of the citizen, the duty, if you will, of the citizen who hears and knows a policeman [is] shouting at him to stop, policeman in uniform? What do you think would you say is the duty and obligation of a citizen?‘MR. MARPET: Your Honor, I think that we have to take into consideration every element involved that the Court knows at this time. We are dealing in 1972 with black students at Long Beach State. The question then is what should that student do? Or what should that citizen do? And I don't know whether——‘THE COURT: Do you think there is a special rule for black students?‘MR. MARPET: No, but I am saying what the black citizen in his own mind would do under those circumstances that he is faced with.‘THE COURT: Oh, he, what he would do? The question is what is the obligation of a citizen, black, white, yellow, whatever the case may be when an officer tells him to stop.‘ . . .‘THE COURT: I am looking here at Murphy against Murray. . . . ‘A police officer seeking to arrest one charged with crime is not acting in self-defense, but in defense of the state. The law requires, ‘requires' him to make arrests under certain circumstances, and if he merely assumes the position of a private citizen protecting himself against harm, he is neglectful of the duty imposed upon him and is open to censure therefor.’‘ . . .‘Mature reflection and deliberation, balancing and weighing pros and cons, could not be expected under the exigent and emergency circumstances here apparent to the defendant Vershaw.‘By any reasonable man test, using that term also in the context of a reasonable officer, which we must, he has got a little different reasonable man status, a higher reasonable man status. He's a trained person. So by standard of even the reasonable officer, the defendant Vershaw in my opinion did what ninety-nine out of one hundred officers, reasonably prudent, would have done when confronted by the same circumstances and possessed of the same information.‘In the context of discharging a duty that Murphy talks about, to the extent permitted by law, he can't be faulted or charged with negligence, notwithstanding he may not come strictly within the strict requirements of the Long Beach Police policy. It has not been demonstrated by any evidence before this Court that the Long Beach police policy here in evidence rises to the dignity of a minimal standard of care. As policy it may well guide officers.‘I will order the reporter to give you copies of what I am saying here for the purpose of findings.‘And as a policy, it may well guide officers, but the failure to comply therewith, or the conditions and limitations thereof do not necessarily dictate a finding of negligence, so long as the conduct is within the permissible limits of the State Penal Code.‘By way of illustration, if the same policy dictated that no Long Beach officer should discharge a weapon except when being directly attacked, could it be claimed that an officer discharging his weapon under other circumstances, as in the case before the Court, was ipso facto negligent in violating that policy? So-called policy is, of course, admitted in evidence, but it is not necessaryily conclusive on the question whether in the given case the failure to adhere thereto is proscribed negligence.‘It is significant to note that the Penal Code refers to the officer's conduct here as ‘justifiable’ homicide, not ‘excusable’ or otherwise. If the Penal Code justifies a killing, should the civil law in turn mulct a defendant in damages for the same justifiable conduct? I think not.‘The cause of action on behalf of the plaintiffs is in a sense derivative. That is to say, that although the statute creates a cause of action in surviving parents, it must nevertheless be based upon a wrongful act, and we emphasize wrongful, but if the decedent could not have recovered for a personal unjury under the same circumstances, it stands to reason that his parents cannot recover, and are in no better position to recover damages.‘To allow the plaintiffs herein recovery, with all due respect to their loss and to their damage—I understand that. I am compassionate with it. I dont't want to be understood as not sympathizing. That is not the focus here. To allow the plaintiffs herein recovery would be tantamount to placing a reward on lawlessness and a bonus on such lawlessness.‘It was the plain obligation of the decedent in this Court's mind to stop under the circumstances of this case. And his apparent knowing failure to stop was evidence of his lawlessness. His failure to stop and to perform his obligation of a citizen to submit cannot be the basis of damages in favor of his parents.’

5.  The findings of fact and conclusions of law in more pertinent detail were as follows:‘FINDINGS OF FACT:‘The court finds that:‘1. . . .‘2. The defendant, Dennis Vershaw, was at all times herein mentioned a peace officer for the State of California and a police officer employed by the City of Long Beach, acting within the course and scope of his duties.‘3. . . .‘4. On October 18, 1972, the defendant, Dennis Vershaw, while on patrol in uniform in a police vehicle, received by way of official police communication a direction to respond to what he reasonably believed to be a burglary in progress in Apartment #325 at 5025 Pacific Coast Highway, Long Beach.‘5. Thereafter, Officer John Finn, a peace officer for the State of California and a police officer employed by the City of Long Beach, acting within the course and scope of his duties, while in full uniform, knocked upon the door of Apartment #325, identified himself as a police officer and demanded that the occupants open the door. Immediately thereafter, noises were heard within Apartment #325 to indicate to Officer Vershaw that the occupant or occupants were attempting to escape by way of the rear of the apartment unit.‘6. In response thereto, Officer Vershaw ran to the rear of the apartment, which was located on the third floor of the apartment complex.‘7. Upon reaching the stairway adjacent to the balcony of Apartment #325, Officer Vershaw observed two individuals, one of whom was Roland Peterson, to jump from the third floor to the first floor patio area. Thereupon, while standing in full view at the third floor stairway to the rear of Apartment #325, Officer Vershaw repeatedly ordered Roland Peterson to halt. Roland Peterson ignored Officer Vershaw's orders to halt and attempted to flee the area.‘8. While in the course of attempting to flee the area, Roland Peterson turned and looked at Officer Vershaw, standing on the third floor landing.‘9. After looking at Officer Vershaw, Roland Peterson continued to run from the area.‘10. Thereafter, Officer Vershaw intentionally discharged his firearm, killing the decedent Roland Peterson.‘11. At the time he discharged his firearm, Officer Vershaw believed and had reasonable cause to believe that Roland Peterson had committed a violation of Section 459 of the California Penal Code, burglary.‘12. At the time he discharged his firearm, Officer Vershaw believed and had reasonable cause to believe that Roland Peterson was a felon, fleeing the scene of a burglary committed at Apartment #325.‘13. At the time he discharged his firearm, Officer Vershaw believed and had reasonable cause to believe that no other means were available to prevent the escape of Roland Peterson.‘14. At the time he was shot, Roland Peterson was knowingly and wrongfully fleeing from Officer Vershaw.‘15. On October 18, 1972, there was in existence Section 4242 of the City of Long Beach Police Department Manual which prescribed certain guidelines for the discharge of a firearm by a City of Long Beach police officers.‘16. Officer Vershaw, in firing his weapon at Roland Peterson, failed to comply with the guidelines set forth in Section 4242 of the City of Long Beach Police Department Manual.‘17. Officer Vershaw, in firing his weapon at Roland Peterson, used justifiable deadly force within the permissible limits of Section 196 of the California State Penal Code.‘CONCLUSIONS OF LAW:‘1. At the time he discharged his firearm, Officer Vershaw believed and had reasonable cause to believe that Roland Peterson had committed a violation of Section 459 of the California Penal Code, burglary.‘2. At the time he discharged his firearm, Officer Vershaw believed and had reasonable cause to believe that Roland Peterson was a felon, fleeing the scene of a burglary committed at Apartment #325.‘3. At the time he discharged his firearm, Officer Vershaw believed and had reasonable cause to believe that no other means were available to prevent the escape of Roland Peterson.‘4. At all pertinent times, Officer Vershaw acted as a reasonable and prudent police officer in discharging the duties imposed upon him as a peace officer for the State of California.‘5. The City of Long Beach Police Department Manual, Section 4242, though it may serve as a guideline for the conduct of Long Beach police officers, does not constitute a minimal standard of care for the use of firearms by said police officers.‘6. The failure of Officer Vershaw to comply with Section 4242 of the City of Long Beach Police Department Manual, in discharging his firearm herein, does not constitute a negligent or a wrongful act, so long as his conduct was within the permissible limit of the California Penal Code and it was within such limit.‘7. Officer Vershaw, in firing his weapon at Roland Peterson, used justifiable deadly force within the permissible limits of Section 196 of the California State Penal Code.‘8. At the time he was shot, Roland Peterson was wrongfully and knowingly fleeing the lawful command of a police officer to stop.‘9. The acts of the decedent, Roland Peterson, affect and infect the claimed right of recovery herein of his parents, Otis Peterson and Lottie B. Peterson. Therefore, if Roland Peterson could not have recovered for unjuries sustained had he lived, his parents may not recover damages for his death.‘10. . . .‘11. . . .’

6.  In the trial court plaintiffs' counsel did not contend that Murphy was no longer applicable but argued that LBPDM section 4242 was the basis for recovery as reflected in the following colloquy between the court and plaintiffs' counsel:‘THE COURT: Do you feel that the Murphy case would not be law today?‘MR. MARPET: Oh, no, not at all, but I feel that the administrative policy which wasn't in there——‘THE COURT: That is the variance?‘MR. MARPET: That is the variance.‘THE COURT: Okay. Then I get the real thrust of your point.’

7.  Also pertinent to the instant case are two additional Penal Code sections, namely:Penal Code section 835a which provides:‘Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance. [¶] A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance,’ and Penal Code section 836 which provides: ‘A peace officer may . . ., without a warrant, arrest a person: . . . [’] 2. When a person arrested has committed a felony, although not in his presence. [¶] 3. Whenever he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.'

8.  On June 1, 1972, pursuant to the Long Beach City Charter the city manager of Long Beach and defendant William J. Mooney, chief of police of the Long Beach Police Department, prescribed section 4242 of the Long Beach Police Department Manual. It is noted that the City of Long Beach and Chief of Police Mooney were named defendants in the Long Beach case as well as in the instant case.

9.  The plaintiff, Long Beach Police Officers Association, contended the subject matter of the regulation has been totally preempted by the Penal Code. The defendants, City of Long Beach and chief of police, contended that the regulation was exclusively a municipal affair.

10.  In Jones a ‘private citizen’ wife shot and killed her husband for beating her; in Piorkowski a ‘private citizen’ volunteer shot a youth while struggling with him in an attempt to apprehend him believing the youth had burglarized a dry-cleaning establishment; and in Ceballos a ‘private citizen’ property owner set a trap gun which wounded an intruder.

11.  The California Constitution provides:‘All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.’ (Art. 1, § 1.)

THOMPSON, Associate Justice.

LILLIE, Acting P. J., concurs.