United States District Court, N.D. California
SAN FRANCISCO PATROL SPECIAL POLICE OFFICERS ALAN BYARD, an individual, ROBERT L. BURNS, an individual, CALVIN C. WILEY, an individual, JOHN J. ANDREWS, an individual, SCOTT HART, an individual, TODD HART, an individual, SAMUEL J. REYES, SR., an individual, THEODORE TORRES, an individual, JOHN BARRY, an individual, SERGE J. WHITE, an individual, HANLEY CHAN, an individual, EARL L. CURTIS, an individual, ANTHONY CIRIMELE, an individual, JOHN FITZINGER, an individual, THE SAN FRANCISCO PATROL SPECIAL POLICE OFFICERS ALLIANCE, a public benefit corporation, THE SAN FRANCISCO PATROL SPECIAL POLICE OFFICERS ASSOCIATION, INC., a public benefit corporation, and SAN FRANCISCO PATROL POLICE, an unincorporated association, Plaintiffs,
THE CITY AND COUNTY OF SAN FRANCISCO, a public incorporation, THE SAN FRANCISCO POLICE DEPARTMENT, a public incorporation, SERGEANT GERALD DARCY, an individual, INSPECTOR MARTIN OHALLORAN, an individual, SERGEANT UEUGEN GELEANO, an individual, SERGEANT JOHN BRAGAGNOLO, an individual, SERGEANT JESUS PENA, an individual, OFFICER MICHAEL SIMMONS, an individual, SERGEANT PETER THOSHINSKY, an individual, OFFICER JOHN VAN KOLL, an individual, OFFICER THOMAS CUNNANE, an individual, OFFICER RANDY LY, an individual, and DOES 1 through 10, 000, inclusive, Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND GRANTING MOTION TO SUBSTITUTE PARTIES
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.
action alleging efforts by San Francisco to undermine the
business of a private police force, defendants move for
summary judgment. To the extent stated below, summary
judgment is Granted.
case features a little-known species of private police called
“patrol special police officers” whose pedigree
in San Francisco dates back over a century. This interesting
history informs the constitutional issues presented.
1900, the City and County of San Francisco adopted a charter,
which gave the Board of Police Commissioners the power to
appoint and remove (at its pleasure) “special police
officers, ” as follows (Defs.' RJN, Exh. A, Art.
VIII, Ch. III § 1 ¶ 4):
At its discretion, upon the petition of any person, firm or
corporation, to appoint and at pleasure to remove, special
police officers. Such officers shall be subject to all the
rules and regulations of the Board.
1900 Charter did not refer to “patrol special police
officers, ” which are the subject of this lawsuit.
1932, San Francisco enacted a new charter. The new charter
provided for the appointment and removal (at the police
commission's pleasure) of “special police
officers” (with language nearly identical to that in
the 1900 charter) and also provided for the appointment and
removal (for cause) of “patrol special police officers,
” as follows (Defs.' RJN, Exh. B § 35):
The police commission may appoint, and, for cause, remove
patrol special police officers. Each patrol special police
officer shall be at the time of appointment, not less than
twenty-one years of age nor more than forty-five years of
age, and must possess such physical qualifications as may be
required by the commission. Age qualifications shall not
apply to patrol special police officers appointed and acting
at the time this carter shall go into effect nor to their
special police officers were paid by private clientele in the
neighborhoods (or “beats”) in which they worked.
1932 Charter was recodified and amended in 1943. The 1943
Charter preserved the language above regarding patrol special
police officers but added the following provision (Defs.'
RJN, Exh. C § 35.10):
Patrol special police officers who are designated by the
police commission as the owners of certain beat or territory
[sic] as may be fixed from time to time by said commission or
the legal heirs or representatives of said owners, may
dispose of their interest in said beat or territory to a
person of good moral character, approved by the police
commission and eligible for appointment as a patrol special
1970, the Police Commission adopted rules and procedures for
“Patrol Special Officers and Assistant Patrol Special
Officers” (Defs.' RJN, Exh. F).
Charter was again recodified and amended in 1971. The section
pertaining to patrol special police officers underwent only
minor changes. Specifically, the amended language set the
maximum age for a patrol special police officer at forty,
limited any “grandfathering” to patrol special
police officers to those appointed before the 1943 Charter
took effect, and corrected a typographical error
(see Defs.' RJN, Exh. D § 3.536).
1973, San Francisco adopted Section 10B of its Administrative
Code, authorizing the Police Department to provide additional
law enforcement services upon request by persons,
corporations, firms, or organizations, at the requester's
cost (Bakondi Second Supp. Decl., Tab 49).
1987, the San Francisco City Attorney issued a public opinion
regarding whether patrol special police officers constituted
“peace officers” under state law (and were
therefore entitled to receive certain training) and whether
the Police Commission could alter the peace officer status
via amendments to the rules and regulations applicable to the
patrol special police officers. The City Attorney responded
“yes” to both inquiries, with certain caveats
(Baumgartner Decl., Exh. 16). Specifically, the City Attorney
advised that an amendment to the Charter, rather than a
change in rules, would be preferable in resolving the status
of patrol special police officers as peace officers vel non.
This was because, the City Attorney opined, the Charter as
written did not permit the Police Commissioner to eliminate
the patrol special police officers without a Charter
amendment, and thus could not effect a “de facto
elimination . . . by so limiting their powers and duties as
to render their services worthless” (Baumgartner Decl.,
Exh. 16 at 8).
City Attorney further concluded that the patrol special
police officers had “no vested right” to use
public streets pursuant to their beat ownership, and that the
“Charter may further be amended to deprive existing
Patrol Specials of exclusive ownership of their beats so long
as reasonable provision is made for them to recoup their
investment” (id. at 9). The City Attorney
provided no legal authority for the conclusion that the
patrol specials needed reasonable provisions to recoup their
August 1993, Samuel Reyes and the San Francisco Patrol
Special Police Officers Association, on behalf of all of its
members (both plaintiffs herein as well) sued San Francisco
and three police officers in San Francisco Superior Court.
The plaintiffs therein advanced the theory, inter
alia, that San Francisco's provision of competing
police services pursuant to Administrative Code Section 10B
violated the rights of the patrol special police officers to
provide services within their beats, which, they claimed,
constituting taking without just compensation (see
Dkt. No. 6-3, at 32-74). An order sustained the
defendants' demurrer as to the inverse condemnation claim
without leave to amend (Defs.' RJN, Exh. M).
November 1994, the Police Commission adopted a substantial
revision to the rules governing patrol special police
officers (Defs.' RJN, Exh. G). Notwithstanding the City
Attorney's earlier advice, these rules deprived the
patrol special police officers of their status as peace
officers, relegating them to duties more akin to private
security guards than police officers. The rules also required
the owners of beats to “personally participate in the
patrol of their beats” rather than relying
“solely on assistants to conduct patrol services”
(id., Rule 4.11).
December 1994, another group of patrol special police
officers, Robert Hart, Samuel Reyes, Serge White, Calvin
Wiley, Theodore Torres, and John Andrews, sued San Francisco
and the Police Commissioners. Robert Hart is the
predecessor-in-interest of two plaintiffs herein, Todd and
Scott Hart, and the remaining plaintiffs in the 1994 action
are also plaintiffs herein. The 1994 complaint alleged the
defendants had caused a “de facto elimination” of
the patrol special police officers and that they had no
intention of compensating the plaintiffs for that
“taking” (Defs.' RJN, Exh. P). Demurrer was
sustained and affirmed on appeal (Defs.' RJN, Exh. T).
August 1995, the same plaintiffs from the 1994 action plus
several others, including one plaintiff herein, Anthony
Cirimele, again sued San Francisco and several of its
employees. The complaint therein sought inverse condemnation
and a writ of mandate (See Defs.' RJN, Exh. U).
Demurrer was again sustained (Defs.' RJN, Exhs. Y, Z).
Francisco amended its charter in 1996, which amended charter
remains in effect today. The 1996 Charter continued to
provide for patrol special police officers, but it included
several substantive changes, as follows (See
Defs.' RJN, Exh. E § 4.127):
The Commission may appoint patrol special police officers and
for cause may suspend or dismiss patrol special police
officers after a hearing on charges duly filed with the
Commission and after a fair and impartial trial. Patrol
special police officers shall be regulated by the Police
Commission, which may establish requirements for and
procedures to govern the position, including the power of the
Chief of Police to suspend a patrol special police position,
including the power of the Chief of Police to suspend a
patrol special police officer pending a hearing on charges.
Each patrol special police officer shall be at the time of
appointment not less than 21 years of age and must possess
such physical qualifications as may be required by the
Patrol special police officers may be designated by the
Commission as the owners of a certain beat or territory which
may be established or rescinded by the Commission. Patrol
special police officers designated as the owners of a certain
beat or territory or the legal heirs or representatives of
the owners may dispose of their interest in the beat or
territory to a person of good moral character, approved by
the Police Commission and eligible for appointment as a
patrol special police officer.
Commission designation of beats or territories shall not
affect the ability of private security companies to provide
on-site security services on the inside or at the entrance of
any property located in the City and County.
for our purposes, the amendment authorized the Police
Commission to rescind beats that had previously been
2008, the Police Commission adopted interim rules, in
preparation for a substantial overhaul of the rules that has
not yet occurred (see Defs.' RJN, Exh. H). The
2008 interim rules remain in place today. The new rules
reiterated that the San Francisco Police Department expected
patrol special police officers to work with private business
and clients. The rules also limited the number of beats that
a particular individual could own to three.
filed their first complaint in this action on July 27, 2012,
in Contra Costa County Superior Court. The parties underwent
several venue-transfer motions and three rounds of demurrer
practice in state court. Notably, in the order on
defendants' demurrer to the fourth amended complaint,
Judge Richard Ulmer, Jr., of San Francisco Superior Court
ruled that plaintiffs' “inverse condemnation”
claims for compensation following a taking under state law
were barred by claim preclusion and issue preclusion, due to
the actions brought in 1993-95 (see Dkt. No. 6-6 at
1-5). That order directed counsel to “meet and confer
regarding the contents of the fifth amended complaint”
(id. at 6).
declined to meet and confer with defendants before filing
their fifth amended complaint. That complaint asserted, for
the first time, federal claims under Section 1983, as well as
a claim for breach of contract. Defendants removed the action
to federal court here in San Francisco in 2016, based on the
new federal claims. Defendants then moved for a more definite
statement, to dismiss the Section 1983 claims against the
individual defendants, and to dismiss the contract claim. An
order denied the motions for a more definite statement and to
dismiss the contract claim, but granted the motion to dismiss
the Section 1983 claims against the individual defendants.
the extensive motion practice detailed above, plaintiffs now
assert various constitutional, tort, and contract claims
primarily focusing on the theory that the provision of police
services pursuant to Section 10B impeded on their property
interest in their beats.
now move for summary judgment on all claims. While this
motion remained pending, plaintiffs moved to substitute the
heirs of two individual plaintiffs. This order follows full
briefing and oral argument on the ...