Certainly, an individual with a business interest can violate another individual’s civil rights. A simple example is Ms. Right refusing to rent to Mr. Wrong because of his race.
But, (1) can a security guard be liable for a civil rights violation merely for physically restraining a patron of a business? (2) Does the physical restraint have to be motivated by a patron’s sex, religion, race or sexual orientation? (3) Can an employer be vicariously liable for it’s employee security guard’s physical restraint of a patron? (4) Are there any penalties for such physical restraint?
A problem with these issues is that they have not all been dealt with on an appellate court level. I expect that they will be in the near future because the plaintiffs’ bar is beginning to assert these claims. The purpose of this Article is to give counsel for security guards and their employers a heads up on what to expect in their next lawsuit.
Can a security guard be liable for a civil rights violation merely for physically restraining a patron of a business?
We all have heard of the Unruh Civil Rights Act, Civil Code § 51, that essentially proclaims that all persons are created equal no matter their sex, race color, religion, ancestry, national origin, disability, medical condition, marital status or sexual orientation and are entitled to equal accommodations, facilities, privileges and services in all business establishments.
And, you may have heard of the Ralph Civil Rights Act, Civil Code, § 51.7, enacted in 1976, which prohibits all violence or intimidation by threat of violence committed because of the victim’s personal characteristics listed in Civil Code § 51.
Now we have the Bane Civil Rights Act, Civil Code § 52.1, which authorizes individuals whose Constitutional and statutory rights have been interfered with by threats, intimidation, or coercion, to bring a civil action for damages including reasonable attorneys’ fees.
In 1998, the California Supreme Court considered a case where a store customer who had been detained by store employees and handcuffed based on a mistaken belief by the employees that the customer had been shoplifting. The jury instructions predicated defendants’ 52.1 liability solely on a claim of interference with either the Fourth Amendment to the United States Constitution or article I, section 13 of the California Constitution. The Court concluded that the proscription against unreasonable search and seizure provided in these two provisions applied only to acts of the government. Jones v. Kmart (1998) 17 Cal.4th 329, 334.
Interestingly, the Court suggested that if the defendants had called the police and then coercively interfered with the plaintiff’s Fourth Amendment rights he would have a viable cause of action under 52.1. Id., at 334-335.
Although the plaintiff in Jones limited his theories of liability to unlawful search and seizure, he possibly could have claimed the right of protection from bodily restrain or harm as provided for by Civil Code § 43. This Code section was gratuitously mentioned in Jones without any discussion. Id. at 338. This may suggest that a wrongful touching by a security guard could support the claim for a civil rights violation if properly pled.
In a case where two severely autistic children claimed their pre-school instructor assaulted and battered them as well as violated their civil rights the jury absolved the instructor of assault and battery. The trial court granted defendants’ motion for non-suit on the Ralph Act claim. The trial court and appellate court concluded there was no violation of the Ralph Act because there was no evidence the instructor intended to discriminate against the plaintiffs because of their disability or age. Austin B. v. Escondido Union School District (2007) 149 Cal.App.4th 860 at 880-881. The jury instruction for the Ralph Act claim was CACI No. 3023.
The trial court and appellate court also granted defendants’ motion for non-suit on the Bane Act claim that the constitutional right to a public education was interfered with by threats, intimidation or coercion. The courts’ reasoning was simple. There was no evidence that this constitutional right was interfered with or that the instructor attempted to cause such interference. Id. at 881-883. The jury instruction for the Bane Act was CACI No. 3025.
It is interesting to note that the appellate opinion in Austin B. based its decision on the absence of evidence that the instructor attempted to achieve the interference with the right to education. Id. at 883. Such an attempt is also a violation of § 52.1. But if there is such an interference, the California Supreme Court has concluded that §52.1 does not require a showing of actual intent to discriminate so long as the acts were accompanied by the requisite threats, intimidation, or coercion. Venegas v. Los Angeles (2004) 32 Cal.4th 820 at 841
As with the Unruh Civil Rights Act and the Ralph Civil Rights Act, does the violation of the Bane Civil Rights Act require conduct motivated by the victim’s personal characteristics?
When the Legislature amended the Bane Act, Civil Code § 52.1, in 2000 it answered that question in the negative. The Legislature declared that § 52.1 guarantees the enjoyment of Federal and California Constitutional rights without regard to membership in a protected class identified by its race, color, religion, or sex, among other things. In doing so, the Legislature expressly concluded that the decision in Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797 misconstrued § 52.1. In fact, to make themselves perfectly clear, the Legislature stated in their Declaration that an action brought pursuant to § 52.1 does not require the victim to be a member of a protected class identified by its race, color, religion, or sex, among other things.
Can an employer be vicariously liable for it’s employee security guard’s physical restraint of a person or patron?
There are no citable cases that specifically address vicarious liability for an employer for its employee’s violation of the Bane Civil Rights Act. The only case to discuss this specific issue, Chew v. Hybel (1997) WL 33644581, is an unpublished case. In Chew, the court found that there is vicarious liability for the acts of ones agents or employees under the California Bane Civil Rights Act, as well as others including the Fair Housing Act and the California Unruh Civil Rights Act.
Damages for Violation of the Bane Civil Rights Act
The Bane Act states that damages for a § 52.1 violation including but not limited to damages under Section 52 as well as injunctive and equitable relief. are available under Civil Code § 52. In addition, the court may award reasonable attorney’s fees.
Civil Code §52(a) provides for an award of actual damages for every offense and any amount a jury determines up to a maximum of three times actual damages but in no case less than $4000 and attorney’s fees determined by the court.
Civil Code § 52(b) provides an award of actual damages for every offense plus punitive damages and attorney fees. Yet nothing in the Bane Act, § 52 or any reported case addresses whether § 52(a) or/and §52(b) applies to a Bane Act claim.
As to when a security guard and his employer are liable for Civil Rights violations arising out of a citizen’s arrest, there is no conclusion. This is very unfortunate given the potential for significant damages even with minimal actual harm. God help the first attorney who takes such a case to trial. Not only should the client(s) be aware of the risks for such a claim but the cost of a probable appeal as well.
Credits: Significant research and analysis was provided by Michelle Sepich, Esq.
Please Note: This article is necessarily general in nature and is not a substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.