was unlawful. Nor is there clearly established law presented to indicate that Golz's collection of some free papers for the purpose of educating his fellow officers was unlawful.
Accordingly, upon reconsideration the Court will grant qualified immunity to defendant Golz only.
B. Hongisto's Claim of Qualified Immunity
Defendant Hongisto contends the Court misapprehended the applicable rules of law and the facts of record before the Court. The defendant agrees that the Court correctly described the proper standard to be applied. Hongisto Memorandum for Reconsideration at 4. As in the case of the defendant Officers, the question is whether plaintiffs' rights were clearly established at the time the newspapers were confiscated, and whether an officer could reasonably believe the conduct was lawful. Defendant Hongisto objects to what he believes was a subjective inquiry into his motivations. The Court has found that the law is clearly established that removal of newspapers based solely on the content of the ideas and not motivated by any purpose of enforcing the criminal laws but to suppress plaintiffs' speech would be unlawful. Defendant Hongisto objects that the papers were removed for the purpose of educating officers. However, the Court has found that "ample evidence exists to support the claim that Hongisto was insulted by the paper and sought to avoid having it read by others." Order at 11:12-14. The Court found summary judgment could not be granted on the issue of qualified immunity as Hongisto's position was contradicted by the testimony of numerous officers. See e.g., Turner Declaration F, G, H, I, J, K, L, M, S, X and Y; (Alleging generally, that Hongisto told defendant Delagnes that he was repulsed and disgusted by the negative depiction of him in the paper, troubled by the impact on his wife and children, and sought action to "avoid further embarrassment." See Davis Decl., Exh. C. (Deposition of Gary Delagnes at 86-90). Thus, the evidence regarding Hongisto's actions in the matter indicates that his conduct may have violated clearly established statutory or constitutional rights. Further, there is insufficient evidence to indicate Hongisto's actions were objectively reasonable. An objectively reasonable officer could not have believed an unflattering portrayal of himself in the local press was lawful grounds to order the papers removed. Such a scenario presents a violation of clearly established law of which an objectively reasonable officer would have known. Accordingly, summary judgment cannot be granted for defendant Hongisto on this issue.
II. Hongisto's Scope of Employment
The Court's Order of March 9, 1994 found that summary judgment could not be granted to defendant Hongisto on the scope of employment issue. The Court found that "significant aspects of the case would clearly be admissible at trial, easily enough to raise questions over whether Hongisto's actions were far outside the scope of employment." Order at 11-12 (footnotes omitted).
Defendant Hongisto cites the case of Knott v. California, decided after this Court's Order, to demonstrate that his actions should be considered within the scope of his employment. 94 C.D.O.S. 1869 (March 15, 1994). In Knott, a police officer lured a young woman off a freeway and strangled her in a secluded area. The court in Knott found the criminal conduct flowed directly from the officer's abuse of authority, and that the cost should be borne by the public. Id. at 1872 ("assuming [the] allegations are true, Peyer's criminal conduct flowed directly from Peyer's abuse of his authority as a traffic officer and therefore, as in Mary M., it is appropriate that the cost resulting from such misuse should be borne by the public."). Further, Hongisto notes that this Court's reliance on the "personal" nature of Hongisto's action would seem misplaced after Knott; and Mary M. v. City of Los Angeles, 54 Cal.3d 202, 285 Cal. Rptr. 99, 814 P.2d 1341 (1991), cases in which serious criminal conduct was considered within the scope of employment.
It is clear there is a strong disfavor for denials of respondeat superior liability in police officer cases. See White v. County of Orange, 166 Cal.App.3d 566, 571, 212 Cal. Rptr. 493 (1985) (distinguishing case of Alma W. v. Oakland Unified School District, 123 Cal.App.3d 133, 176 Cal. Rptr. 287 (1981), in which qualified immunity was not granted because school custodian employee deviated from duties for "personal purposes" from cases where defendant was a "police officer who is entrusted with a great deal of authority."). As Knott and Mary M. indicate, where the misconduct flowed directly from defendant police officer's abuse of his authority, the public should be held responsible for the cost of the damage. Here, the police chief, communicating via police channels with subordinate on-duty officers, requested action. Where the conduct in question is thus connected to the enterprise of law enforcement, vicarious liability must apply. Accordingly, the cost of Hongisto's conduct must be borne by the City and defendant Hongisto's motion for reconsideration on this question is GRANTED.
III. State Law Immunity
The section of the Court's Order concerning qualified immunity concludes: "As the potential underlying issues coincide, it is noted that this finding also resolves Officers' qualified immunity status as regards state liability issues." Order at 32. Plaintiffs assert that "there is no comparable immunity under state law." Plaintiffs' Memorandum at 15 (emphasis in original).
It is clear, however, that there are numerous cases in which police officers have been found to be immune to suit pursuant to California Government Code § 820.2 (public employee not liable for injury where causal act or omission "was the result of discretion vested in him, whether or not the discretion be abused."). This language is similar to Romero v. Kitsap County in which the defense of qualified immunity was found to protect "government officials performing discretionary functions" in situations like those described above. 931 F.2d 624, 627 (9th Cir. 1991)(citing Harlow v. Fitzgerald, supra.) Defendant Officers cite Sullivan v. City of Sacramento, 190 Cal.App.3d 1070, 1081, 235 Cal. Rptr. 844 (1987), in which a police dispatcher was immunized for the discretionary act of deciding to make a phone call, and Watts v. County of Sacramento, 136 Cal.App.3d 232, 234, 186 Cal. Rptr. 154 (1982), in which immunity was granted for a decision to arrest, as examples of such discretion. As no state causes of action remain following this Order, however, the issue of state immunity no longer has significance in this case.
IV. Certification of Interlocutory Appeal
The final judgment rule holds that appeal should lie only from an order that terminates litigation at the trial stage. See 28 U.S.C. § 1291 see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978); In re Cement Antitrust Litig., 673 F.2d 1020 (9th Cir. 1982) aff'd, 459 U.S. 1190 (1983). This rule reduces the points of error which must be reviewed to those that are material to the actual result, and provides efficiency by consolidating all grounds for appeal into a single action.
Section 1292(b) of Title 28 of the U.S. Code provides:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
28 U.S.C. § 1292(b).
Section 1292(b) is an exception to the established final judgment rule, and thus the party seeking certification "has the burden of showing that exceptional circumstances justify a departure from the 'basic policy of postponing appellate review until after the entry of a final judgment.'" Fukuda v. County of Los Angeles, 630 F. Supp. 228, 229 (CD. Cal. 1986) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978))(emphasis added). Each of the three requirements must be met before interlocutory appeal will be certified: (1) a controlling question of law; (2) substantial grounds for difference of opinion; and (3) immediate appeal may materially advance the ultimate termination of the litigation. Cement Antitrust, 673 F.2d at 1026.
As the Court has reconsidered its grant of qualified immunity for defendants Delagnes and Yuen, plaintiffs' rationale for seeking certification for interlocutory appeal is lessened somewhat. The Court notes that allowing the issue to be appealed would not materially advance the ultimate termination of the litigation. Indeed, an appeal of this issue is only slightly more meritorious than appeals of other claims already resolved by the Court. The case could well dissolve into a fragmentary stew of issues if every significant issue is certified for appeal. While the issue of qualified immunity presents some difficult questions of law, it has not been demonstrated that there are adequate grounds for interlocutory appeal.
V. Plaintiff's Declaratory Judgment Claim
The parties agree that it lies within the Court's discretion to determine whether declaratory relief is proper. See e.g., Moore's Federal Practice § 57.08. The Court previously found no reason to provide for declaratory relief as there was no showing of a danger that the action might be repeated. Plaintiffs argue that, although this circumstance might be determinative in nature on the issue of injunctive relief, it does not control the broader issue of the authority of the Court to provide declaratory relief. It should be noted that the Court has observed that the "relevant administrative bodies as well as numerous officials condemned the actions at issue here, actions which have never received official endorsement." Order at 24. The Court has found that nothing would be accomplished by a declaratory judgment in this matter. Moreover, it is apparent to the Court that the judicial declarations sought by the plaintiff would be of no force and effect in this or any other case and would be nothing more than an advisory opinion which courts are well advised to avoid. Accordingly, declaratory relief will not issue.
VI. Motion to Dismiss California Constitutional Claims
In its Order of March 9, 1994, the Court deferred ruling on the question of a private right of action under the California Constitution and requested further briefing.
A constitutional provision is presumed to be self-executing unless a contrary intent is shown. See Fenton v. Groveland Comm. Services Dist., 135 Cal.App.3d 797, 805, 185 Cal. Rptr. 758 (1982); 7 Witkin, Summary of California Law, § 52 (9th ed. 1988). However, in Leger v. Stockton Unified School Dist. the court observed that:
The following rule has been consistently applied in California to determine whether a constitutional provision is self-executing in the sense of providing a specific method for its enforcement: 'A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given force of law. 202 Cal.App.3d 1448, 1455 (1988).
The California Constitutional provisions at issue here do not provide "rules by means of which" the principles at issue could be given force of law. Id. As in Leger, the provisions are devoid of "guidelines, mechanisms or procedures from which a damages remedy could be inferred." Id. Other courts in this district have reached the same conclusion and dismissed similar claims. Brown et al. v. Jordan, et al., Northern District of California No. C-92-3624 FMS, (Jan. 7, 1994).
Plaintiffs, noting that the Court has denied relief under Civil Code § 52.1, urge the Court to find a cause of action is available to them under the California Constitution. However, the Court must apply the law and facts to the issue at hand. There is no requirement that the Court find at least one of plaintiffs' proposed causes of action survive summary judgment. Rather, where the facts and law require, plaintiffs may find their claims relegated to state common law or statutory claims.
Plaintiffs also urge the Court to apply Laguna Publishing Co. v. Golden Rain Foundation to this case and allow a direct claim based on the California Constitution. 131 Cal.App.3d 816 (1982). The Court finds this argument ultimately unpersuasive. First, the Court notes that more recent cases, such as Leger, supra, and Clausing v. San Francisco Unified School Dist., 221 Cal.App.3d 1224, 1236, 271 Cal. Rptr. 72 (1990), have not followed the reasoning of Laguna. Cases in this district have also reached a contrary outcome. Brown et al., supra. The factual circumstance of Laguna is also quite different from the case at issue here, as Laguna involved a quasi-governmental entity which intentionally precluded newspaper distribution within the community. The problem confronted in Laguna was one of classic governmental prior restraint to which the court allowed the application of the State's Constitution. Here, by contrast, as in Leger, the issue at hand is the application of the Constitution to injuries that were not ratified by official community policy. Finally, after Laguna was decided, the legislature enacted Civil Code § 52.1.
This legislation provides the proper mechanism by which the constitutional provisions at issue could be brought under state law. While the Court has found the requirements of § 52.1 were not satisfied by plaintiffs' evidentiary showing, nonetheless this statute is the proper vehicle for this type of action.
For the foregoing reasons, the Court ORDERS as follows:
1. Plaintiffs' motion to reconsider the Court's grant of qualified immunity to defendants Delagnes and Yuen is GRANTED. The motion to reconsider the grant of qualified immunity to defendant Golz is DENIED.
2. Plaintiffs' motion to reconsider the denial of declaratory relief is DENIED.
3. Defendant Hongisto's motion to reconsider the issue of his qualified immunity is DENIED.
4. Defendant Hongisto's motion for reconsideration of whether he acted within the scope of his employment is GRANTED.
5. Defendant City's motion to dismiss claims for damages under the California Constitution is GRANTED.
IT IS SO ORDERED
Dated: June 21, 1994
D. Lowell Jensen
United States District Judge