Lawyers convince justices to reexamine fault doctrine in excessive force cases

Years before the wrongful death complaint John E. Sweeney filed would lead the state Supreme Court to clarify tort law and issue a strong critique of racism in the justice system, Sweeney knew he had a tough and unpredictable case on his hands.

The deceased, Darren Burley, was a Black victim of excessive police force including a fatal assault by a deputy who knelt on his neck and back, pinning him to the ground until he went limp. Burley died 10 days later without regaining consciousness. When the incident occurred in 2012 the era of racial reckoning was in the future and the prospects for the plaintiffs, his widow and children, seemed dim.

"As I investigated I said I don't know where this will lead," said Sweeney, a veteran trial attorney mentored by Johnnie L. Cochran Jr. before opening his own shop in 1985. "Darren Burley was assaulting a woman on the street and was high on drugs. It gave the defense a huge opening to blame him for his own death."

Yet Sweeney fought past those obstacles, and with trial co-counsel Carl E. Douglas and Olu K. Orange won an $8 million jury verdict. Then--aided by a powerful appellate team that included Norman H. Pine, Scott L. Tillett, Michael D. Seplow and Orange--the plaintiffs turned away an effort to slash the award almost in half based on a comparative fault doctrine held by the high court to have been wrongly applied to deputies who were intentional wrongdoers.

A unanimous Supreme Court reversed a state appellate opinion limiting the award due to fault by the decedent. The justices, in a ruling by Justice Ming W. Chin, held that the comparative fault doctrine, which apportions liability, applies only to negligent, not intentional, tortfeasors. B.B. v. County of Los Angeles, S250734 (Ca. S. Ct., op. filed Aug. 10, 2020).

Justice Goodwin H. Liu added in a forceful concurrence, joined by Justice Mario-Florentino Cuéllar, "Darren Burley was Black. By happenstance, we heard oral argument in this case one week after another Black man, George Floyd, was killed by a Minneapolis police officer who pressed his knee into Floyd's neck...In all likelihood, the only reason Darren Burley is not a household name is that his killing was not caught on videotape as Floyd's was.

(From top left) Olu Orange, Scott Tillett, Norman Pine, John E. Sweeney and Yasmin Fardghassemi.

"Sadly, what happened to these men is not happenstance. Variants of this fact pattern have occurred with distressing frequency throughout the country and here in California."

Pine, who shared the appellants' argument time with Orange, said the justices' decision to add a racial justice factor to its apportionment of liability analysis was welcome and somewhat surprising. The appellants' briefing had discussed the relative moral culpability of the deputies and their victim, but "nominally, the case was reversed over tort issues. It was incredibly important to tort lawyers, and in fact the court limited its grant of review to that. In theory, discussing the merits went beyond the limits the court had set. Still, we did what we could to raise the equities issue as well."

The team included Yasmin Fardghassemi of Orange's office, who worked on the trial; Aidan C. McGlaze and John C. Washington of Schonbrun Seplow, who helped with the appellate briefing; and Beverly T. Pine of Pine Tillett Pine, who also helped with the appeal.

Sweeney pointed out that the Supreme Court's opinion also revived his Tom Bane Civil Right Act claims, which remain to be litigated and could entitle the plaintiffs to attorney fees. And he noted that Los Angeles has yet to pay up on most of the jury award. "They have run up $250,000 in taxpayer money wasted on interest since September, and we have had nothing but silence." With interest still accruing and the Bane Act still outstanding, Sweeney said, "It's not going to get better for them."

Lawyers predicted that Liu's concurrence will resound beyond the case. "He pointed out the extraordinary need for more teeth in civil rights legislation," Orange said. Added Seplow: "Justice Liu spoke with a lot of authority, and civil rights practitioners can now be certain that defendants cannot blame the victim in excessive force cases."

-- John Roemer