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It’s “Probably No Big Deal” – How to Enter into Law Enforcement Service
When a member of the public is injured while engaged in “active law enforcement service,” either on command by the county, (typically a county sheriff) or at the request of a peace officer, California law treats the member of the public as a public employee entitled to workers’ compensation benefits. (Labor Code § 3366, sub. (a).) These workers’ compensation benefits are provided by the public entity that either commanded or requested the member’s engagement in active law enforcement. Transforming the injured member’s status to an employee of the public entity confines their remedies within California’s workers’ compensation system. (Labor Code § 3602.)
In the recent case from the California Supreme Court, Gund v. County of Trinity (Aug. 27, 2020, S249792) __ Cal.5th __ [2020 WL 5049230] (Gund), the Supreme Court sought to define when an injured member of the public becomes engaged in “active law enforcement service,” thereby limiting their recovery rights within workers’ compensation. In Gund, the Court examined whether a peace officer’s phone call for a neighbor to check in on a 911 caller contained significant omissions and misrepresentations that it could not objectively be a request to engage in active law enforcement service within the purview of Labor Code section 3366. The Court of Appeal nor the Supreme Court addressed whether the injured persons assisted under command pursuant to Labor Code section 3366 or if a county resolution deems volunteers to be employees if they provide “service” to the county.
On March 13, 2011, a Trinity County Sheriff phoned a middle-aged couple, Mr. and Mrs. Gund, asking if they could check on their neighbor who had called 911 and stated, “help me.” The Sheriff was en route but over three hours away. The Sheriff asked Mrs. Gund if she had ever met the caller’s boyfriend and whether he ever seemed violent; he also mentioned the impending arrival of a major storm, which “must be what this is all about” its “probably no big deal”. Additionally, he instructed Mrs. Gund not to go alone.
The Sheriff also omitted the following facts: the caller had whispered on the 911 call and repeatedly stated “help” multiple times; the dispatcher was leery of calling back; and a different dispatcher called twice but went straight to voicemail.
Once Mr. Gund came home, the Gunds went over to check on their neighbor. They believed the 911 call was weather related – a fallen tree or difficulties with a wood burning stove. Instead they walked into a murder scene.
Mr. Gund stayed in the truck while Mrs. Gund entered the home. The murderer immediately attacked Mrs. Gund cutting her throat with a knife. Upon hearing the commotion, Mr. Gund entered the home; the man attached Mr. Gun cutting his throat as well. The Gunds escaped and survived the brutal attack.
The Trial Court, Appellate Court and Supreme Court all ruled in favor of Trinity County that the Grunds were only entitled to worker’s compensation and could not sue the County of Trinity for civil remedies.
MAJORITY OPINION by Justice Cuellar joined by Chief Justice Cnatil-Sakauye and Justices Corrigan, Liu, and Kruger.
To determine whether an individual becomes a public employee entitled to workers’ compensation under Labor Code section 3366 the California Supreme Court applies a two part test: (1) whether a peace officer asked for assistance with a task that qualifies as active law enforcement; and (2) whether the injury occurred while engaged in the task. The second prong the Supreme Court equates to the AOE/COE analysis in workers’ compensation claims. In Gund, there is no question that the Gunds were injured while engaged in the task.
The Court decides that active law enforcement service does not encompass every conceivable function. Peace officers serve to ensure the safety and welfare of the community which may entail helping a lost child, assisting persons in a natural disaster, or warning about a hazardous materials leak. It also includes recapturing an escapee and investigating crimes. Active law enforcement service is “best understood as capacious — but not entirely open ended —to include  public protection, enforcement, and crimefighting functions . . . It includes the arrest and detention of criminals and the range of reasons that trigger emergency calls to police”. (Majority Opinion p. 11). Responding to a 911 call for unspecified help is a typical law enforcement task.
It is the peace officer’s ask that determines whether it was a request for assistance in active law enforcement in order for Labor Code section 3366 to apply. This determination requires an objective inquiry and not the subjective beliefs of the civilian “employee”. The majority grounds their characterization of the Sheriff’s phone call as a request to respond to a 911 call because the caller said, “help me;” the Sheriff had asked whether the caller’s boyfriend was violent and instructed Ms. Gund not to go alone. The Sheriff’s comments about a major storm and that its “probably no big deal” did not convert the request to a weather-related issued beyond the scope of active law enforcement service.
The Opinion continues that the sheriff’s omissions – the caller had whispered on the 911 call and repeatedly stated “help” multiple times, the dispatcher was leery of calling back, and a different dispatcher called twice but went straight to voicemail – do not change the essential nature of his request – to respond to a 911 call for help.
Under the circumstances in Gund, the Court finds that merely alleging a request for assistance contained a misrepresentation without more, did not change the “essential nature” of the request taking it out of the purview of Labor Code section 3366. Instead, the Court continues that workers’ compensation provides a remedy when an employer intentionally conceals and misrepresents hazards in order to induce employment – a Labor Code section 4553 claim for serious and willful misconduct which would allow the Gunds increased compensation for their injury.
DISSENT by Justice Groban joined by Justice Chin
The dissenting opinion agrees with the majority concerning the two- part test and an objective analysis for determining whether the peace’s officer’s request is for a tasks that qualifies as active law enforcement service.
The Dissent takes issue with the Majority’s application of objectivity to the Sheriff’s request. If one is going to implement an objective inquiry then one “should examine everything that was said, and everything that was not said, when [the Trinity Sheriff] made his request to the Gunds, and ask whether an objectively reasonable person would understand his request to be one for assistance with a task that qualifies as active law enforcement service.” (Dissent p. 4-5.)
The Dissent does not believe that the Sheriff intentionally misrepresented the true nature of the situation or wanted the Gunds harmed. But if one can ignore a peace officer’s misrepresentations and omissions regarding the nature of the 911 call, then a peace officer could intentionally lie about any potential danger. (Dissent p. 9.)
Additionally, the Dissent is skeptical to believe that the average person would be incentivized to assist peace officers in active law enforcement because of the availability of public entity worker’s compensation benefits. Instead, most people feel compelled to assist because of a “civil duty”. Workers’ compensation benefits are not a “victory of employees over employers” but part of a bargain between employer and employee. It may be a quicker route to compensation for injury but it does not provide for “pain and suffering”/non-economic damages.
Considering the current state of affairs regarding actions taken by peace officers engaged in active law enforcement resulting in deadly shootings, I was surprised by the majority’s application of objectiveness. The country and California acknowledge that there may be a great disparity between how a peace officer views a situation and a member of the public. Therefore, I agree with the dissenting opinion that an objective analysis requires evaluating all of the facts and context.
One effort to confront this disparity, was the passage of Assembly Bill 1185 (on September 14, 2020, presented to the Governor for consideration) allowing county boards of supervisors to create oversight commissions for sheriffs and the power to subpoena their records. Perhaps this law will provide evidence for a more objective analysis. Additionally, it may incentivize sheriff departments to be transparent about their requests to members of the public to engage in active law enforcement, because the details will be analyzed by the Board.
Furthermore, the costs entailed in workers’ compensation have significantly increased and may amount to “catastrophic levels” than previously thought back in 1963. The Gunds need continued medical treatment. A March 28, 2019 Sacramento Bee article reported that Ms. Gund still requires treatment surgery to remove scar tissue around her throat, plus psychological injuries. Due to these injuries she has not been able to return to work. Workers’ compensation should not be seen as a measure to limit costs for public entities especially when the costs of healthcare continue to rise.
California’s population continues to grow along with commands by its counties to abide by public safety measures due to natural disasters and pandemics. If a peace officer asks an individual to detain a person in a grocery store for not wearing a face covering, does that individual become a public employee if he slips and falls or contracts COVID-19? Hopefully not, but this decision conforms with California policy to maximize services from members of the public or prisoners (e.g. inmate firefighters) in order to allegedly save costs via workers’ compensation benefits.
By Jessica Gorton, Esq., Associate Attorney, Santa Rosa Office September 2020