Second District, Division Six, Court of Appeal Presiding Justice Arthur Gilbert has a long-running monthly Daily Journal column. (See here.) The latest installment, in today’s paper, focuses on Supreme Court Justice Goodwin Liu’s concurring opinion last month in B.B. v. County of Los Angeles, which called for a reckoning about the historical pattern of police violence against African Americans.
The legal issue in B.B. was race neutral: the court’s unanimous opinion held that, regardless of their proportion of fault, intentional tortfeasors are responsible for all noneconomic damages awarded. The case’s facts, however, revealed 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.
Justice Gilbert finds the separate opinion “thought-provoking” and says he “subscribe[s] to Justice Liu’s views,” but he asks whether Liu’s message was appropriate for a concurring opinion or whether it would have “been better expressed in a law review article.” As suggested by the column’s title — “On the other hand . . .” — Gilbert has no firm answer.
This isn’t the first time Justice Liu has used a concurrence to opine on a public policy issue that wasn’t directly before the court. See, e.g.: Supreme Court affirms death penalty for murder of elderly couple; concurrence criticizes California’s death penalty system.
