VALDEZ v. ABNEY (1986)

FACTS AND PROCEEDINGS BELOW

Officers Maggio and Abney of the Inglewood Police Department were on duty when they saw plaintiff, Robert Valdez, and two other youngsters walking along a sidewalk.   Maggio noted the three were stumbling and staggering as they walked.   The officers stopped their patrol car near the three youths.   Officer Maggio saw Mr. Valdez throw away an object which, he suspected, was a gun.   The officers got out of their car and approached the youths.   The officers concluded Mr. Valdez and one other youngster were under the influence of PCP and undertook arrests.¹

Officer Maggio advised Mr. Valdez he was under arrest and commanded him to put his hands behind his back to be handcuffed.   When Mr. Valdez did not comply or respond, Maggio grabbed his right arm in a wrist lock.   Mr. Valdez kicked Officer Maggio in the shin.   Then he spun and twisted and started to take a swing at Officer Maggio with his free hand.   At that point Officer Maggio withdrew his sap and struck Mr. Valdez twice in the midsection.   Maggio testified the purpose of these blows was to knock the wind out of Valdez and thereby gain control of him.   Maggio then pushed Mr. Valdez to the ground with his foot and handcuffed him.

At the police station, Mr. Valdez began swinging and kicking at Officer Maggio.   Maggio responded by striking Mr. Valdez twice in the solar plexus.   Officer Maggio also testified that at the police station Officer Abney “shoved” Mr. Valdez in the stomach with his foot.   Upon further questioning, Maggio conceded the “shove” could be construed as a kick.

The day after his arrest Mr. Valdez underwent surgery in which his spleen and half his pancreas were removed.   An expert witness testified the damage to Mr. Valdez' pancreas was caused by a severe blow or blunt force to the midsection which smashed the pancreas against the spinal cord.

Officer Maggio is over 6′ tall and weighs 180 pounds.   At the time of his arrest, Mr. Valdez was 14 years old, 5′ 3″ tall and weighed 105 pounds.   The defense contended despite their differences in height, weight and physical maturity Maggio had difficulty controlling Valdez because Valdez was under the influence of PCP.   In support of this contention a defense expert testified when a person is under the influence of PCP the person has much greater strength.

Mr. Valdez brought an action for battery against Officers Maggio and Abney.   The case was tried before a jury which returned a unanimous verdict in favor of the police officers.   Mr. Valdez appeals.

SUMMARY OF DECISION ON APPEAL

Mr. Valdez raises several issues on appeal.   We find his first claim dispositive:  the trial court improperly imposed on him the burden of proving the police officers used unreasonable force in making the arrest.   We need not reach the other issues.   However, for the guidance of the trial court on re-trial we also express the view it was error to allow impeachment of one of Mr. Valdez' witnesses on the testimony of an expert that, in general, youth gangs have a code under which one member will lie to support another.

DISCUSSION

A. In an Action for Battery Against a Peace Officer, the Officer Has the Burden of Proving the Reasonableness of the Force Used to Effectuate the Arrest

The problem of affording civil redress for injuries at the hands of the police must be viewed in the context of the function of the police and the laws governing their use of force to make an arrest.  “An arrest is made by an actual restraint of the person, or by submission to the custody of an officer.”  (Pen. Code, § 835.)   Few arrests are made with the consent of the criminal.   Therefore, the authority to make an arrest must necessarily carry with it the privilege of using reasonable force to effect it.  (See Prosser & Keeton on Torts (1984, 5th ed.) at p. 155.)   The law of justification or privilege in such instances is as essential to effective police action as the law of arrest itself.  (Comment, Justification for the Use of Force in the Criminal Law (1961) 13 Stan.L.Rev. 566, 569.)   In California, the privilege is codified in section 835a of the Penal Code.

“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 overcome resistance.”

 This case presents a question of first impression in California.   In a suit for battery against a police officer, arising out of a lawful arrest, does the plaintiff have the burden of proving the force was unreasonable or does the defendant have the burden of proving the force was reasonable.

Plaintiff argues the police have the burden of proving the force used in making an arrest was reasonable under the circumstances.   He cites Boyer v. Waples (1962) 206 Cal.App.2d 725, 727, 24 Cal.Rptr. 192 and other California cases for the proposition “[t]he burden of proof of the affirmative defense of justification for the [battery] and that the force used was not excessive was upon the defendant.”   Defendants point out none of the cases cited by plaintiff involved police officers making a lawful arrest.   Rather, they involved private citizens exercising the right of self-defense under Civil Code section 50.   Defendants contend a cause of action for battery against a police officer is different from a cause of action against a private citizen.   In the case of police officers, the officers are not engaged in solely defensive action but in the affirmative act of making an arrest under color of law.   Defendants argue that because police officers are privileged to use force in making an arrest, the plaintiff must plead and prove the officers used unreasonable force in order to prove their acts constituted a battery.

Cases from other jurisdictions are split on this issue.   Some follow the general rule exemplified by Boyer, supra.   These cases hold a police officer, like any defendant seeking to justify an act of battery has the burden of proving such justification.  (Schumann v. McGinn (1976) 307 Minn. 446, 240 N.W.2d 525, 531;  Ambrose v. Wheatley (D.Del.1971) 321 F.Supp. 1220, 1224 [applying Delaware law];  Skinner v. Brooks (1944) 74 Ohio App. 288, 58 N.E.2d 697, 698;  Reese v. City of Seattle (1972) 81 Wash.2d 374, 503 P.2d 64, 74;  Pike v. Eubank (1956) 197 Va. 692, 90 S.E.2d 821, 817;  City of Lexington v. Gray (Ky.1973) 499 S.W.2d 72, 74.)   Other courts take the position advocated by the defendants in the case at bar.   These cases hold the unreasonableness of the force employed is an element of the tort rather than a matter of defense.  (Dauffenbach v. City of Wichita (1983) 233 Kan. 1028, 667 P.2d 380, 386;  Wirsing v. Krzeminski (1973) 61 Wis.2d 513, 213 N.W.2d 37, 41;  State ex rel. Ostmann v. Hines (1910) 148 Mo.App. 289, 128 S.W. 248, 249–250;  Ware v. Garvey (D.Ma.1956) 139 F.Supp. 71, 79 [applying Massachusetts law].)   Still others place the burden on the plaintiff on the theory the police are presumed to have acted properly and it is up to the plaintiff to overcome this presumption.  (Wall v. Zeeb (N.D.1967) 153 N.W.2d 779, 785–786;  Modessett v. Emmons (Tex.1927) 292 S.W. 855, 856.)

For the reasons set forth below we concur with the line of cases holding the police have the burden of proving the force used was reasonable.

 The presumption an official duty has been regularly performed is not applicable to a civil suit for battery against a police officer.²

Defendants have cited no California case, nor have we found one, extending this presumption to the discretionary use of force by a police officer.   The case closest on point is People v. James (1907) 5 Cal.App. 427, 90 P. 561, in which the court held the presumption not applicable in the prosecution of a police officer for a homicide committed while he was on duty.   The defendant requested jury instruction “that the law presumes that if the defendant was an officer and acting as such at the time of the alleged homicide that he was doing his duty.”  (Id., at p. 432, 90 P. 561.)   The court held the proposed instruction was improper.  “Peace officers are justly invested, under our law, with considerable discretion and power, but it could hardly be contended seriously that a homicide committed by one is presumed to be justifiable simply because of his official position.  (Ibid.)

California law places the burden of proof on the police to show justification in the analogous situation of a suit for false arrest and false imprisonment.   (Dragna v. White (1955) 45 Cal.2d 469, 471, 289 P.2d 428.)   The Supreme Court explained the rationale for this allocation of the burden in the following terms:

“Considerations of both a practical and policy nature underlie this rule.   The existence of justification is a matter which ordinarily lies peculiarly within the knowledge of the defendant.   The plaintiff would encounter almost insurmountable practical problems in attempting to prove the negative proposition of the nonexistence of any justification.  (See People v. Agnew (1940) 16 Cal.2d 655, 663–664 [107 P.2d 601].)   This rule also serves to assure that official intermeddling is justified, for it is a serious matter to accuse someone of committing a crime and to arrest him without the protection of the warrant process.”  (Cervantez v. J.C. Penny Co. (1979) 24 Cal.3d 579, 592, 156 Cal.Rptr. 198, 595 P.2d 975.)

Similar considerations of practically and public policy require the police officer to bear the burden of proving the force used in an arrest was reasonable.

 A prima facie case of battery is made if the plaintiff proves an intentional harmful contact with his person.  (4 Witkin, Summary of Cal. Law, (8th ed. 1974) § 194, p. 2483;  Rest. Torts (2d) § 18.)   Officer Maggio admits striking Mr. Valdez twice in the midsection with a sap.³  The blows were delivered with force intended to “knock the wind out of” Mr. Valdez.   Maggio and Abney did not dispute Valdez' injuries occurred as a result of these blows.   Thus Valdez established a prima facie case of battery.

Whether an officer used unreasonable force to effect the arrest is a complex question involving police department policy, the officer's training and experience,⁴ and the officer's subjective interpretation of facts.   (Amato v. United States (D.N.J.1982) 549 F.Supp. 863, 869;  Samuel v. Busnuck (D.Md.1976) 423 F.Supp. 99, 101.)   Justification for the use of force resides with the police officer because it is within his special knowledge, particularly insofar as the justification is explained by or dependent on the officer's state of mind.

In Rickel v. Schwinn Bicycle Co. (1983) 144 Cal.App.3d 648, 657, 192 Cal.Rptr. 732 we addressed the question whether a plaintiff in a suit for interference with prospective economic advantage has the burden of proving the defendant's conduct was unjustified or unprivileged.   In an opinion written by Presiding Justice Schauer we held lack of justification or privilege are not elements of the tort.   Rather, justification or privilege are affirmative defenses on which the defendant bears the burden of proof.  (Id. at p. 660.)   Our decision was based in part on the rule privilege or justification is an affirmative defense to the similar tort of interference with an existing contract.   We could find no basis for holding the burden is on the plaintiff to prove lack of justification when the business relationship is prospective but the burden is on the defendant to prove justification when the relationship is existing.  (Id., at p. 658, 192 Cal.Rptr. 732.)   Thus, in Rickel, we found the difference in the relationship between the parties was not a significant reason for realigning the burden of proof between them.

Similarly, in the case at bar, we can find no reason for holding the plaintiff bears the burden of proving the force used against him was unreasonable when the defendant is a police officer but the defendant bears the burden of proof the force used was reasonable when the defendant is a private citizen.  (See Civ. Code § 50.)   Surely, physical harm such as suffered by the plaintiff here is as serious a concern whether it was inflicted by a police officer making an arrest or a private citizen in self-defense.  (Cf. Cervantez v. J.C. Penny Co., supra, 24 Cal.3d at p. 592, 156 Cal.Rptr. 198, 595 P.2d 975.)

Defendants contend even if the jury instruction on burden of proof was erroneous the error was harmless.   We disagree.  “[F]ew instructions are of greater importance then that which informs the jury which party bears the burden of proof on the issues in dispute.”  (Moreno v. Fey Manufacturing Co. (1983) 149 Cal.App.3d 23, 27, 196 Cal.Rptr. 487.)   Here, Mr. Valdez proved a prima facie case of battery.   We find somewhat suspect the defense claim that PCP turned a 5′3″, 105–pound child of 14 into something resembling The Incredible Hulk.   Surely, Officer Maggio, over 6′ tall, 180 pounds, is not a weakling.   If the jury had been instructed correctly on the burden of proof, it is reasonably probable a decision more favorable to the plaintiff would have resulted.  (Cf. Moreno, supra, 149 Cal.App.3d at p. 27.)

B. A Police Officer's Opinion Members of the Same Gang Will Lie to Support Each Other Was Improperly Admitted to Impeach the Testimony of a Plaintiff's Witness

Victor Lopez testified he saw one of the defendants kick Mr. Valdez in the side three or four times.

On cross-examination Lopez admitted he and Valdez were members of the same gang, the Culver City 13.   Defense counsel then asked Lopez:  “Is there a rule in this group ․ that one member, if he testifies against another member, then he will be punished?”   Lopez answered, “No, not that I know of.”

 Later, as part of the defense case, Officer Aguilar of the Inglewood police force was permitted to testify as an expert on gangs.   Officer Aguilar was asked “Would a member of the Culver City 13 ․ in your opinion, ․ lie to help a fellow member?”   Plaintiff's objection to the question was overruled and Aguilar answered, “Yes ․  [S]uch a subject would lie.”   It was error to admit this opinion testimony.

There was no foundation for Aguilar's expert testimony about how a Culver City 13 gang member would behave.   Aguilar's expertise consisted of his former membership in a gang;  brief assignment to the Inglewood Police gang investigation section;  and “familiarity” with the Culver City 13.   He did not testify he had ever belonged to the Culver City 13 or his familiarity with that gang included personal knowledge its code of conduct included lying to help a fellow member.

 Even if Officer Aguilar qualified as an expert on gangs his testimony was not admissible for impeachment purposes.

A witness' credibility may be attacked by evidence showing some portion of his testimony to be untrue.  (Evid.Code, § 780, subd. (h).)  But in the case before us the question asked Lopez and the question asked Aguilar were entirely different.   Lopez was asked if there was a rule in the Culver City 13 requiring a member be punished if he testifies against another member.   Lopez answered he knew of no such rule.   Aguilar was asked if a member of the Culver City 13 would lie to help another member.   Aguilar answered in his opinion one member would lie to help another.

Evidence would be admissible to show the Culver City 13 had a code of conduct that required its members to lie for one another and punished those who violated this duty.   Such evidence would show Lopez had a motive to lie.   (See People v. Ruthford (1975) 14 Cal.3d 399, 410, 121 Cal.Rptr. 261, 534 P.2d 1341.)   However, this was not the evidence produced at trial.   Lopez denied any knowledge of a rule in his gang requiring punishment for a member who failed to lie to help a fellow member.   Officer Aguilar did not testify the Culver City 13 had such a rule.   He testified in his opinion a member of the gang would lie to help another member.

In commenting on the evidence to the jury, the trial judge mischaracterized Lopez' testimony.   He told the jury, “The question was asked would [Lopez] lie to help a fellow member of a gang, and he said no, and you can consider [Aguilar's] opinion only to decide whether or not you think [Lopez] was telling the truth or not.”   In other words, based on a non-existent conflict in the evidence, the trial judge instructed the jury to choose between believing Lopez, an admitted gang member and ex-felon, or Aguilar, a police “expert” on gangs whose expert opinion was Lopez was a liar.   We have no doubt the jury threw out Lopez' testimony.

 A witness' credibility may also be attacked by evidence showing the witness' character trait for dishonesty.  (Evid. Code, §§ 786, 780, subd. (e).)  Two types of evidence are admissible to prove a witness' character trait for dishonesty:  evidence of the witness' reputation and personal opinion testimony.  (See, generally, 2 Jefferson, Cal.Evid. Benchbook (2nd ed. 1982), § 28.4.)   Officer Aguilar's testimony falls in neither category.   In People v. Mendoza (1974) 37 Cal.App.3d 717, 112 Cal.Rptr. 565, the trial court correctly excluded a police officer's opinion testimony a witness was lying.   The officer did not know the witness nor did he profess knowledge of the witness' reputation for honesty and veracity.   The officer's opinion, based on experience in similar cases, was inadmissible.  (Id., at pp. 723–724, 112 Cal.Rptr. 565.)   In the case before us, there was no evidence Aguilar knew Lopez or knew Lopez' reputation for honesty and veracity.   His opinion Lopez was a liar was based on his observation “gangs of the type of Culver City 13 have certain mores and codes and rules that govern the conduct of their members.”   This was not a sufficient basis for an opinion about Lopez' veracity.

 The reputation of a group for dishonesty is not admissible to prove the character trait of dishonesty in an individual member.   American courts have repeatedly rejected the doctrine of guilt by association.  (See e.g., Elfbrandt v. Russell (1966) 384 U.S. 11, 17, 86 S.Ct. 1238, 1241, 16 L.Ed.2d 321;  Konigsberg v. State Bar (1957) 353 U.S. 252, 267, 77 S.Ct. 722, 730, 1 L.Ed.2d 810;  Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, 23, 64 Cal.Rptr. 409, 434 P.2d 961;  In re Wing Y. (1977) 67 Cal.App.3d 69, 79, 136 Cal.Rptr. 390.)   In Konigsberg, the court held bad moral character could not be inferred from membership in the Communist Party.

“Even if it be assumed that Konigsberg was a member of the Communist Party ․ the mere fact of membership would not support an inference that he did not have good moral character.   There was no evidence that he ever engaged in or abetted any unlawful or immoral activities—or even that he knew of or supported any actions of this nature.   It may be ․ that some members of that party were involved in illegal or disloyal activities, but petitioner cannot be swept into this group solely on the basis his alleged membership in that party.”  (353 U.S. at pp. 267–268, 77 S.Ct. at p. 730.)

In California, the matter was put quite succinctly by Justice Jefferson in In re Wing Y.:  “Membership in an organization does not lead reasonably to any inference as to the conduct of a member on a given occasion.”  (67 Cal.App.3d at p. 79, 136 Cal.Rptr. 390.)

Defendants urge us to adopt the reasoning in United States v. Abel (1984) 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450.   There, the court ruled the government could properly establish bias by showing the defendant and his witness belonged to the same organization and the tenets of the organization required its members to deny its existence and “ ‘lie, cheat, steal [and] kill’ to protect each other.”  (469 U.S. at p. ––—, 105 S.Ct. at 467, 83 L.Ed.2d at p. 455.)   In a unanimous opinion written by Justice Rehnquist the Court said bias evidence does not stop with a showing the witness and a party belong to a common organization.  “[T]he type of organization in which a witness and a party share membership may be relevant to show bias.”  (Id., 469 U.S. at p. ––––, 105 S.Ct. at p. 470, 83 L.Ed.2d at p. 458)  Justice Rehnquist contrasted a loosely knit organization such as the Book of the Month Club with the organization at issue—a secret prison sect sworn to perjury and self-protection.   The attributes of the prison organization bore directly on the fact of bias and also on the source and strength of the witness' bias.  (Id. 469 U.S. at pp. –––– – ––––, 105 S.Ct. at pp. 470–71, 83 L.Ed.2d at pp. 458–459.)   In the Court's view, evidence of the tenets of the organization was relevant even without proof the witness has personally adopted its tenets.

Abel is distinguishable from the case at bench procedurally and factually.   In Abel, the court was construing the Federal Rules of Evidence.   Thus, its holding is not binding on us.   Furthermore, the court stressed throughout its opinion the witness and the defendant belonged to a specific gang whose tenets required its members to lie to protect each other.   We need not decide whether, under Evidence Code section 780, such evidence would have “any tendency in reason” to disprove the truthfulness of the witness' testimony.   In the case before us, there is no evidence the Culver City 13, as opposed to youth gangs in general, has such a rule.

DISPOSITION

The judgment is reversed.

FOOTNOTES

1.   Valdez admitted tossing away the gun and using PCP.   He conceded the officers had reasonable cause for arrest.

2.   Under California Evidence Code, section 664, “It is presumed that official duty has been regularly performed.”   This is a presumption affecting the burden of proof.  (Evid. Code, §§ 660;  605.)

3.   The sap used by Maggio was an object seven or eight inches long, made of leather, with a rounded flat head containing lead.

4.   Officer Maggio testified that prior to this incident he had receiving training and experience in handling suspects who are under the influence of PCP.   Not only was there training at the sheriff's academy, in-house training after the academy and Maggio's training of other officers, but Maggio had personal experience in handling suspects.   Through this experience and training Maggio learned and was taught certain precautions should be taken in such situations.According to Officer Maggio's testimony, persons under the influence of PCP are extremely violent.   He also testified the best way to handle a person on PCP is to use sheer body weight and as many officers as possible to render the person incapacitated.Officer Abney testified that in handling a PCP suspect, the officers are taught to react promptly so no one, the officers, the arrestee or bystanders, will be injured.   He testified officers are taught the best position to place the suspect is prone on the ground on his belly with his legs spread and his arms out to the side.   When suspects refuse to cooperate, the officers are trained to force them into that position, being very careful to watch their hands for weapons, and to shove them down to the ground.

JOHNSON, Associate Justice.

LILLIE, P.J., and THOMPSON, J., concur.