HomeMy WebLinkAboutAGENDA REPORT 1994 0406 CC REG ITEM 08K_ _ n�Y • I
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OF THE
CITY Oh SAC:IZAMENI'O
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OFFICE
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CITY AITORNF.Y
CALIFORNIA
SAC :RA:MENTO. CA
MLLIAM 1. OWFN
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INTFIRIM (TI Y ATTORNF.I'
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March 10, 1994
FAX 916 264 %455
ASSISTANT CITY ATFORNF}
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JOSEPHH Mc1NERNEY
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TAMARA MILLIGAN - IIARMON
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Re: Request for Amicus Participation
Customer Company
v City of Sacramento.
Dear City Attorney:
The purpose of this letter is to request that you join in the amicus brief which the League
of California Cities Legal Advocacy Committee has commissioned Greg Fox of Bertrand, Fox
& Elliot, to author.
Plaintiff Customer Company was the owner and operator of a convenience store located
within the city. Plaintiff sued the City of Sacramento because the contents of its store were
damaged by tear gas used by the Sacramento Police Department in an attempt to flush out a
felony suspect. Plaintiff sought recovery on a number of legal theories, including inverse
condemnation, negligence, waste and trespass. Summary judgment was granted as to all causes
of action. That decision was upheld by the Court of Appeal. Plaintiff has sought California
Supreme Court review only on the inverse condemnation theory.
The issue, which is relatively simple yet of great import statewide, may be summarized
as follows: through use of an inverse condemnation theory, should the costs of law enforcement
response to emergency situations be spread to the community as a whole, as opposed to the
individuals who own property affected, damaged or destroyed during the emergency response?
Stated otherwise, does the "emergency" exception to inverse condemnation liability have
continuing vitality?
If the answer is that such costs need to be borne by the community, then presumably a
public entity must reimburse the owner of any ro rty dama ed b lice action in res onse
to a terrorist, hostage or similar situation. Examp es Inc ude the police response to the "Good
-- RECEIVED
City of Mooroark
Re: Request for Amicus Participation
Customer Company v City of Sacramento
March 10, 1994
Page 2
Guys" hostage situation in Sacramento and the McDonald's Restaurant massacre in San Ysidro,
California. In both of these unfortunate emergency situations, in order to capture the criminal
and protect the lives involved, the actions of the police caused extensive property damage. The
importance of these issues and the resolution of the cases is punctuated by the Supreme Court's
recent expansion of the contours of municipal condemnation liability. See: Locklin v. City of
Lafayette, 94 Daily Journal D.A.R. 2635 (February 28, 1994).
In the facts leading to thi.- ::utter, Christopher Nash was the subject of joint surveillance
by the Sacramento County Sheriff's Department and the Sacramento Police Department. Nash
was suspected of participation in a series of armed robberies, was known to be armed and
dangerous and had claimed that he would shoot it out with police to avoid capture. A prior
felon, his criminal conviction history included assault of a peace officer.. Nash was known to
use methamphetamines and at times behave in a bizarre manner, such as shooting guns inside
houses and at people.
A Sacramento County Sheriffs Deputy observed Nash driving a stolen white Camaro,
and followed him to the convenience store parking lot. Nash and a companion entered the store.
Several officers in police vehicles responded to the scene. Nash apparently saw one of them and
hid in the store when all other occupants of the store left. The stolen Camaro was then searched
and several weapons were found.
Nash refused the officer's requests to voluntarily leave the store and submit to arrest.
The Sacramento Police Department assumed command of the scene because it was within the
city limits. The city's SWAT team was called to the scene and deployed around the store. The
Incident Commander at the scene tried first to order, and then to negotiate Nash from the store.
When his efforts failed, some four hours later he ordered that tear gas be used to induce Nash
to leave the store, and in the event he would not, to provide cover for the SWAT team that
would be sent in to capture him. The gas did not force Nash from the store. The SWAT team
was able to enter the store and capture Nash without injury to Nash or anyone else.
The inventory of the store was contaminated by the gas, and some of the windows and
improvements of the store were broken or otherwise damaged by the gas rounds that were fired.
The store was closed for approximately eleven days to clean up, make repairs and replace the
inventory. These expenses formed Plaintiff's damages claim.
Your participation in this important amicus effort will be greatly appreciated. Please call,
write or Fax us your request to participate on or before March 31, 1994.