The legal issue in today’s Supreme Court B.B. v. County of Los Angeles opinion is race neutral, but the case’s underlying facts certainly aren’t and that does not go unnoticed by either the court or, especially, a two-justice concurring opinion.
The court’s unanimous opinion by Justice Ming Chin holds that, regardless of their proportion of fault, intentional tortfeasors are responsible for all noneconomic damages awarded. They cannot invoke Civil Code section 1431.2, which provides that, in actions “based upon principles of comparative fault,” a defendant’s liability for noneconomic damages is “only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault.”
The facts of the case reveal a death at the hands of Los Angeles County Sheriff’s deputies much like the May 25 killing of George Floyd by Minneapolis police officers. According to the court’s opinion, the plaintiffs’ decedent — Darren Burley — died after being subdued by deputies, including one who “pressed one knee into the center of Burley’s back and another onto the back of Burley’s head, near the neck.”
The opinion reports that Burley was African American and states, “We are cognizant that the facts of this case bear similarities to well-publicized incidents in which African Americans have died during encounters with police. These incidents raise deeply troubling and difficult issues involving race and the use of police force.”
Justice Goodwin Liu, joined by Justice Mariano-Florentino Cuéllar, writes an impassioned concurrence that calls for a reckoning about the historical pattern of police violence against African Americans. Saying relief is needed for “citizens who continue to bear the cruel weight of racism’s stubborn legacy” and citing, among others, James Baldwin’s “The Fire Next Time” and Ta-Nehisi Coates’s “Between the World and Me,” Justice Liu writes that the judgment for Burley’s family both “does not acknowledge the troubling racial dynamics that have resulted in state-sanctioned violence, including lethal violence, against Black people throughout our history to this very day” and is insufficient “to prevent the wrongful deaths of more African Americans in the future.”
The concurring opinion also includes an extended discussion of federal law shortcomings in addressing improper law enforcement practices. It criticizes the “qualified immunity” doctrine that protects government officials from federal liability and it notes that, although the U.S. Justice Department can sue police departments to require procedural overhauls, “[u]nder the current administration, the number of formal investigations launched by the Department of Justice has declined to just one, and the Department has sharply curbed enforcement of existing agreements.”
Reinstating the entirety of an $8 million noneconomic award to Burley’s family despite the jury having found Burley 40 percent at fault, the court resolves a split of authority on the comparative fault issue. It reverses the Second District, Division Three, Court of Appeal, and agrees with a 2006 opinion by the Fourth District, Division One.
