actually at issue in this case is the taking of newspapers based upon their content.
2. Policymaker for the Policy at Issue
The next step of the analysis is to determine whether the Chief was the policymaker with respect to the policy at issue.
As described above, there may be more than one City policymaker. See, e.g., Praprotnik, 108 S. Ct. at 925 ("there will be cases in which policymaking responsibility is shared among more than one official or body"). What is determinative, however, is who has the policymaking authority for the policy or conduct at issue. Jett, 109 S. Ct. at 2723 ("the trial judge must identify those officials . . . who speak with final policymaking authority . . . concerning . . . the particular constitutional or statutory violation at issue").
The City may be liable under section 1983 when the City's "policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Hammond, 859 F.2d at 802 (quoting Monell, 98 S. Ct. at 2037). The question now is whether the Chief is the policymaker for the conduct at issue. That is, whether the Chief's actions in ordering the removal of newspapers based on their content may fairly be said to define official policy. The Chief must have the "final authority to establish municipal policy with respect to the [challenged] action." Pembaur, 106 S. Ct. at 1299.
"Consistent with the commonly understood meaning of custom, proof of random acts or isolated events are insufficient to establish custom. Only if a plaintiff shows that his injury resulted from a 'permanent and well-settled' practice may liability attach for injury resulting from custom." Thompson v. City of Los Angeles, 885 F.2d 1439, 1443-44 (9th Cir. 1989); see also Praprotnik, 108 S. Ct. at 926.
The record in this case establishes that the Commission was the entity authorized to make policy in the area of First Amendment rights, and has also established policies concerning the handling of seized property. See Barretta Declaration, Apr. 14, 1993, Exs. C, D, F, G, I, and J (General Orders). The taking of newspapers based upon content falls into the Commission's domain. The Charter speaks to the Commission's policy authority as well. Plaintiffs' reliance on the Police Code is imprudent because, as discussed above, the Code merely allots the Chief the power to enforce ordinances, rather than award him the power to create policy. Plaintiffs offer no other relevant source of written law or policy that relates to the conduct at issue.
Moreover, the Court finds no evidence in the record to support the assertion that the City had a custom of seizing newspapers based upon content. Some evidence presented indicates that the Chief does have power to create programs and take steps to abate crime. See, e.g., Turner Declaration, May 10, 1993, Ex. I, at 21-22, 24-25. However, when turning to the conduct at issue, the confiscation of these newspapers was a random and unique event which did not stem from a settled and permanent custom. Nor does the Chief of Police, either prior to or after the instant incident, have any policy or custom of confiscating newspapers, an activity bearing no relation to crimefighting. There is no evidence of a custom and practice of the San Francisco Police Department which bolsters plaintiffs' argument. Instead, their position hinges upon speculation and guesswork about what they contend is the "real" power scheme is on the street. However, even if plaintiffs have guessed correctly, the Court is not to rely heavily on the de facto power structure. See Praprotnik, 108 S. Ct. at 924 n.1; see also Auriemma v. Rice, 957 F.2d 397, 400 (7th Cir. 1992); Wulf, 883 F.2d at 869 (courts are not to look to where de facto authority may reside).
In the final analysis, San Francisco is a charter city -- the City Charter governs and the Chief, vis-a-vis the Commission, is a ministerial officer. Although the Chief's powers may be significant and strong, and although he may be able to create and maintain certain crime prevention programs, he is nevertheless subservient to the Commission. This is particularly evident when considering the policy decision at issue in this case. Just because the Chief has certain power, it does not follow that he is a policymaker. The Chief has discretion in the exercise of particular functions and manages daily police operations within the framework set by the Commission. The Chief can recommend policy, follow policy, execute policy, but he cannot establish policy with respect to the policy at issue in this case.
Neither written edicts nor custom and usage supports a contrary conclusion.
3. Final Policymaker for Policy at Issue
Not only must the Court determine who has policymaking authority for the City, but the Court must also "ensure that the municipal official possesses the authority and responsibility for establishing final policy with respect to the issue in question." Mandel, 888 F.2d at 793 (citing Praprotnik, 108 S. Ct. at 926) (emphasis in original); see also Pembaur, 106 S. Ct. at 1300. "Mere authority to exercise discretion while performing particular functions does not make a municipal employee a final policymaker unless the official's decisions are final and unreviewable and are not constrained by the official policies of superior officials." Feliciano, 988 F.2d at 655 (citing Praprotnik, 108 S. Ct. at 926) (emphasis added); see also Gillette, 979 F.2d at 1348.
Even if the Chief was has some policymaking role for the policy at issue, the evidence demonstrates that the Commission is the final authority on policy. The Chief's decisions are reviewable. The City Charter provides that the Chief serves at the Commission's pleasure and is immediately responsible to the Commission. This power was exercised when the Commission terminated the Chief, after an investigation, for his role in confiscating the newspapers. The fact that the Commission had the ability and most emphatically did discharge the Chief for his conduct in this matter reveals that the Chief is not the final policymaker.
Moreover, the fact that the Chief was actually fired for seizing the newspapers demonstrates that the Commission's final authority is not illusory. Cf. Flanagan v. Munger, 890 F.2d 1557, 1569 (10th Cir. 1989) (city's admission "that there is no provision for . . . review" demonstrated that, "for all intents and purposes the Chief's [decision was] final, and any meaningful . . . review [was] illusory").
Plaintiffs argue that because the Commission has failed to pass a General Order specifically prohibiting the removal of newspapers, the current Chief of Police can institute a policy of newspaper seizure. This argument, however, defies common sense.
The Commission, through its termination of Hongisto, made it unmistakably clear that such unauthorized behavior was an abuse of power which is not the policy of the City of San Francisco and warrants dismissal. One would have to ignore reality to seriously believe that another police chief would embark on such self-destructive and plainly intolerable behavior. The Commission's action made quite obvious that the product of such conduct is discharge. Certainly, then, it cannot be concluded that the Chief is the final policymaker with respect to the policy at issue.
Although plaintiffs do not advocate a theory of delegation, this view, too, would fail. No policy power was delegated to the Chief from the Commission. The Commission never yielded its power to make policy respecting First Amendment rights and never consented to the Chief's newspaper heist. Nor could it be argued that the Commission ratified the Chief's conduct. Rather than endorse the Chief's action, the Commission, as the final policymaker, in effect nullified Hongisto's action by terminating him for his role in taking the newspapers. Finally, by definition, if the Chief was the final policymaker on seizing newspapers based on their content, his action would have set policy and have been unreviewable. The Commission could not have fired the Chief if he set a final policy, and the Chief, by virtue of establishing the policy, would not have violated his own policy. The Commission was able to discharge the Chief precisely because the Chief did not have final authority to establish policy and his conduct was impermissible.
Accordingly, the Court concludes that the Chief of Police is not the final policymaker with respect to the policy at issue here and that the City's motion, therefore, must be granted.
E. Plaintiffs' Plea for a Continuance
Plaintiffs, in their reply, argue that even if the Court is prepared to rule in favor of the City it cannot do so. The reason, they proffer, is because plaintiffs lodged a motion on June 9, 1993 to reconsider Magistrate Hamilton's discovery order of June 7, 1993, thus creating an outstanding discovery matter pending before the Court.
Local Rule 410-2 provides, in part, that the reviewing judge:
may deny the motion by written order at any time, but shall not grant the motion without the opposition having had an opportunity to brief the matter. If no order denying the motion or setting a briefing schedule is made within thirty days of filing the motion, the motion shall be deemed denied.
Local Rule 410-2(a) (emphasis added).
Plaintiffs' discovery motion is not an obstacle. The Court, having considered plaintiffs' papers, finds that Magistrate Hamilton correctly ruled on the discovery motion. In any event, the thirty-day period has lapsed and the motion is thus deemed denied.
For the foregoing reasons, the Court ORDERS as follows:
1. Defendant City's motion for summary judgment on plaintiffs' 42 U.S.C. § 1983 cause of action is GRANTED.
2. Plaintiffs' motion for summary judgment is correspondingly DENIED.
3. A status conference is hereby scheduled for September 1, 1993, at 8:30 a.m.
IT IS SO ORDERED.
DATED: August 6, 1993.
D. Lowell Jensen
United States District Judge