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Byard v. City and County of San Francisco

United States District Court, N.D. California

May 25, 2017

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,
v.
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.

         INTRODUCTION

         In this 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.

         STATEMENT

         This 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.

         In 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.

         The 1900 Charter did not refer to “patrol special police officers, ” which are the subject of this lawsuit.

         In 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 re-appointment.

         Patrol special police officers were paid by private clientele in the neighborhoods (or “beats”) in which they worked.

         The 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 police officer.

         In 1970, the Police Commission adopted rules and procedures for “Patrol Special Officers and Assistant Patrol Special Officers” (Defs.' RJN, Exh. F).

         The 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).

         In 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).

         In 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).

         The 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 investments.

         In 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).

         In 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).

         In 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).

         In 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).

         San 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 Commission.
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.

         Critically for our purposes, the amendment authorized the Police Commission to rescind beats that had previously been designated.

         In 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.

         Plaintiffs 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).

         Plaintiffs 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.

         After 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.

         Defendants 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 ...


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