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Statue of Immunity: Police Knew of the Danger that Led to a Child's Death 

Wednesday, Jun 18 2014

The city was shocked by the death of 2-year-old tourist Kayson Shelton, who was killed when a statue he was climbing upon outside a Fisherman's Wharf art gallery toppled onto him.

But it was no surprise.

"For a couple of years now, the merchants have been warned," police Capt. David Lazar told the media regarding store owners placing statues like this on the street. "It is a violation of municipal code."

So, for years, the police have known of a potentially dangerous situation, warned area merchants of the potentially dangerous situation — but did not proactively remedy the potentially dangerous situation.

And now its danger is no longer potential.

There is nothing on God's green earth that can salve the pain of losing a child. That being said, litigation may yet ensue. But a bevy of lawyers tell SF Weekly that despite years of failing to enforce the law, the police — and the city — remain elusive legal targets. That's because California's statute of "discretionary enforcement" gives ample leeway to government officials who choose to not enforce the law.

"A public employee is not liable for an injury resulting from his act or omission," reads Government Code 820.2, "where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused."

Pinning liability on the city — which presumably has deeper pockets than the Majestic Collection gallery at Fisherman's Wharf — would be "very tough," according to Myron Moskowitz, a law professor at Golden Gate University. If the police demonstrated "actual negligence" in enforcement — say, directing the merchant to place the statue in an unsafe place prior to a mishap — that'd be one thing, the professor continues. "But there are immunity doctrines that protect public officials from failing to enforce the law."

The situation, says personal injury attorney Jim Bostwick, is akin to a cop having the leeway to let you off the hook for driving 40 in the 35 zone. Like his colleague in academia, Bostwick concurred that it'd be "very difficult" to successfully litigate against the police — unless the aforementioned municipal code cited by Lazar contains provisions indicating that enforcement is utterly mandatory, coming at the expense of carrying out all the other duties befalling big-city police officers.

It does not.

Per the oft-cited state Supreme Court case Johnson v. California, discretionary immunity won't apply in situations where government officials fail to issue warnings of known hazards. But, says U.C. Hastings law professor Scott Dodson, the SFPD can certainly argue that its officers issued warnings. Lots of warnings. Issuing warnings is the one thing we know the police did.

Legal authorities issued warnings of a different sort to the Majestic Collection gallery, however: Time to lawyer up.

About The Author

Joe Eskenazi

Joe Eskenazi

Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" was a staff writer and columnist for SF Weekly from 2007 to 2015. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers.


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