HomeMy WebLinkAboutAgenda Statement 1988/09/13 Item 05
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COUNCIL AGENDA STATEMENT
Item 5
ITEM TITLE:
Meeting Date 9/13/88
Resolution/~;7;7~ Authorizing the City of Chula Vista to Join
in the Amicus Curiae Brief in Support of the City of Pacifica
in Ballestrieri. v:--~ty of Pacifica
City Attorney \bY-
SUBMITTED BY:
(4/5ths Vote: Yes___No~)
This resolution authorizes the City to join in the case of Ballestrieri v.
City of Pacificia to overturn a recent decision of the Ninth Circuit Court of
Appeals which would nullify the irrnnunity police officers have in deciding
whether to arrest or not arrest an individual.
RECOMMENDATION: Adopt the resolution
BOARDS/COMMISSIONS RECOMMENDATIOO: N/A
In Ballestrieri v. City of Pacific (Ninth Circuit) 88 DAR 10901 decided August
25, 1988, the Ninth Circuit Court of Appeals found that the City of Pacifica
could be liable for the failure of its Police Department to arrest a woman's
husband who later assaulted her. This decision runs contrary to a
long-standing body of law which grants irrnnunity to police officers for the
consequences of a decision not to arrest. As stated in City of Sunnyvale v.
Superior Court (Ragan) which was decided on August 11 of this year:
Under our system of law the power to make an arrest of
another individual is a power grudgingly gi ven in
furtherance of the public interest in preventing crime.
It is a power which is strictly limited and the abuse of
such power can result in civil liability. It would be
contrary to public policy simultaneously to permit the
imposition of civil liability for a failure to exercise
the power. Hence, the irrnnunity is a logical adjunct to
the public policy. (88 DAR 10460)
As stated in the Sunnyvale case, the threat of liability would place police
officers between the rock of making a false arrest and the hard place of civil
liability for failure to do so. This is the reason that the legislature has
granted irrnnunity for the decision not to arrest in Government Code Section 846.
Pacifica has requested that the City join in an amicus curiae brief being
prepared by the City of Sacramento in support of Pacifica I s Petition for a
Rehearing before the entire Ninth Circuit. This case will have a significant
effect on all cities throughout the State of California and an adverse
decision would open cities up to a tremendous potential for liability. For
this reason, it is recorrnnended that the City join in the brief being prepared
by the City of Sacramento.
FISCAL IMPACT: N/A
4634a
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