State high court considers legal issues of sheriff’s call to civilians to check on neighbor

When a rural couple was asked by a law enforcement official to check on a neighbor who made a 911 call and were attacked when they stumbled upon a double homicide, were they engaged in active law enforcement and limited to workers' compensation for their injuries?

That was the question the state Supreme Court considered o Tuesday in the case of Gund et al., v. County of Trinity et al., S249792.

In 2011, James and Norma Gund responded to a call from Trinity County Sheriff's Cpl. Ron Whitman asking them to check on their neighbor who had called 911 earlier that day. Whitman said the incident was weather related and was "probably no big deal," court documents show.

The couple instead walked into an active murder scene where they were physically attacked before the killer fled in a high-speed car chase that resulted in his death.

The Gunds sued Trinity County claiming Whitman failed to warn them that they might be walking into a potentially dangerous situation. They sought $10 million.

Trinity County Superior Court Judge Richard Scheuler ruled that the Gunds' only remedy was worker's compensation because Labor Code Section 3366 mandates that a person engaged in active law enforcement on a peace officer's behalf is deemed a public employee and thus should be entitled to worker's compensation should they be injured. The 3rd District Court of Appeal agreed with the county.

Benjamin H. Mainzer of Bragg, Mainzer & Firpo LLP, representing the Gunds, argued Tuesday that the context of the 911 call should be the focal point of the high court's inquiry.

Whitman, he argued, withheld key facts from the Gunds that may have prevented them from accepting the request to check on their neighbor. Mainzer said Whitman knew the neighbor had whispered "help me" in the 911 call and proceeded to suggest that it was a weather related request. Mainzer also argued that Whitman did not clarify that he wanted the Gunds to engage in some form of law enforcement service which resulted in them unknowingly performing one.

"This is not a scenario where there was a good-natured misunderstanding between the Gunds and Whitman," Mainzer said. He added, "The Gunds metaphorically agreed to feed what they were told would be a house cat and came face to face with a lion."

Defense attorney John R. Whitefleet of Porter Scott in Sacramento argued the misrepresentation of the situation wasn't intentional. But he asserted that the nature of the welfare check-up the Gunds' were performing constituted them having assisted a peace officer in an active duty capacity nonetheless.

He said the appellant's subjective understanding of what the situation would be like based on their conversation with Whitman should not be considered by the court when weighing the context of Labor Code Section 3366 in this case.

Justice Joshua P. Groban asserted the purpose of that statute is predicated upon a trusted relationship between an officer and a civilian and asked why the court shouldn't accept what the officer told the Gunds as objective.

"Why can't we objectively say that when the officer, in making the request, characterizes it in a way that minimizes it, that that has some relevance to our analysis?" Groban asked. "Why should we ignore that?"

Whitefleet argued his client did not mislead the Gunds maliciously and held that checking on the safety and security of a neighbor "invokes risk and a hazard that a peace officer is exposed" to, regardless of what they assumed the situation would be.

"It's clear from the record in this case that Whitman did not know there was somebody waiting to attack them," Whitefleet said. "And the opinion that it might be weather related is just that."

Mainzer asked the high court to remove police requests for assistance from Section 3366 of the Labor Code and affirm that "active law enforcement" under that statue means tasks that are "physically involved in the suppression of crime and apprehension of criminals."

However, California Chief Justice Tani G. Cantil-Sakauye said despite the subjectivity of what Whitman said and how it was interpreted by the Gunds, "it's hard not to see that their behavior here does not objectively fit, circumstances aside, the assistance of active law enforcement."

The court has 90 days to issue an opinion.