Tom Fudge: The professional football season ended yesterday. And for one member of the San Diego Chargers football team, there may be no next season. Linebacker Steve Foley could not take part in the 2006 season because he was shot three times by a Coronado police officer in early September.
The off-duty officer stopped Foley for a DUI. When the linebacker got out of his car, he refused to cooperate and appeared to reach for a gun. Officer Mansker shot at Foley. Today, Foley still has nerve damage from the shooting, and doctors say he will probably never play again.
As a result, Foley has sued Mansker and the City of Coronado, accusing the defendants of negligence.
Guest
- Dan Eaton, These Days legal analyst.
End Music:
Lover Come Back to Me
by The Dizzy Gillespie Alumni All-Star Big Band, from the album
Things to Come
(2002)
The following background research represents the views of Dan Eaton alone and does not represent the views of KPBS
Valentine's Day
When the calendar hits February, people begin to think about love and the imminence of Valentine’s Day. Yet, even aside from divorce, sometimes people sue when things do not go as planned. There are a couple of areas in which there has been litigation related to love in unusual contexts.
Change of Plans
For example, under California law, if a man gives a woman an engagement ring, and the woman backs out of the wedding, the man is legally entitled to the return of the ring “or such part of its value as may, under the circumstances, be found by a court or jury to be just.” (Cal. Civ. Code §1590.)
A man generally is not entitled to receive the ring back if he is the one who breaks off the engagement. In 1950, a California Court of Appeal ruled that the woman is entitled to keep the engagement ring if the man breaks off the engagement “without any fault” on the woman’s part. (Simonian v. Donoian (1950) 96 Cal.App.2d 259, 262.)
There are limits to the remedy of a broken engagement even where the ring may be recovered. In no case can someone who is jilted sue for breach of a promise to marry. California law does not allow a claim for breaking a promise to marry. (Cal. Civ. Code §43.5.)
Change of Names
It is not unusual for a woman to take the last name of the man she is marrying and the law makes that choice an easy one to formalize. She can do that simply by checking a box. A man who wishes to adopt his wife’s last name, however, or adopt a blended or hyphenated name like Mayor of Los Angeles Antonio Villaraigosa, must pay over $300. (“What’s in a name? 300 bucks and a lot of hassle” cnn.com.)
On December 15, 2006, the ACLU of Southern California brought suit in Los Angeles federal court on behalf of a Los Angeles man who wished to adopt his wife’s last name as his own when they married in 2005. The man, Mike Buday, claims that treating men and women differently when they want to change their names when they marry violates the equal protection clause of the United States Constitution. Los Angeles County Clerk Conny McCormack, San Diego’s former Registrar of Voters, was quoted in a USA Today story earlier this year as “certainly” being in favor of the courts clarifying the law. (“L.A. Man Sues To Take Wife’s Last Name,” January 12, 2007.) There also is a proposal pending in the California legislature that would change the law.
Steve Foley Shooting
Mr. Foley’s Main Argument
On January 26, 2007, Steve Foley, a linebacker for the San Diego Chargers, filed a lawsuit against the City of Coronado and the off-duty police officer, Aaron Mansker, who shot him on September 3, 2006 around 3:30 a.m. Mr. Foley’s main argument is that an under-trained, off-duty rookie police officer driving an unmarked car followed a professional athlete to his home in the early morning hours. When the unarmed Mr. Foley got out of his car to ask the man what he wanted, the still unidentified officer negligently or intentionally shot him three times, using excessive force, severely injuring Mr. Foley, and in the process ending a promising and financially rewarding career in professional sports.
The complaint claims that both Officer Mansker and the City of Coronado contributed to his injuries. Specifically, Mr. Foley claims that Officer Mansker was acting within the scope of his duties as a police officer even though he was off-duty at the time. (Complaint, ¶ 3.) Under California law, a city employer may be legally responsible for excessive force used by one of its police officers acting with the scope of his duties. ( City of Los Angeles v. Superior Court (1973) 33 Cal.App.3d 778, 782.) Mr. Foley also is claiming that the City of Coronado failed to screen, train, and supervise Officer Mansker, all of which contributed to the allegedly wrongful injuries that Mr. Foley suffered. (Complaint, ¶ 18.) Mr. Foley additionally is claiming that the City has policies and practices that “allowed for and encouraged the use of excessive force. . . .” (Complaint, ¶ 19.)
The Role of Race in the Incident?
While Officer Mansker is white and Steve Foley is black, it is not clear at the point if race will play any role in the case. The complaint filed on Mr. Foley’s behalf is silent about the race of the participants. And Mr. Foley’s companion that night told investigators, according to reports, that she and Foley believed they were being followed, not because he is black, but because he is a professional athlete. Nonetheless, Johnnie Cochran effectively used past statements by white officer Mark Fuhrman in his successful defense of the criminal charges brought against former football player O.J. Simpson. Mr. Foley’s attorneys may try to argue that Officer Mansker unreasonably interpreted Mr. Foley’s reaching toward his waistband as a threatening gesture toward a weapon that wasn’t there, an assumption he would not have made had Mr. Foley been white.
The City and Officer’s Defense to Mr. Foley’s Claims
The City and Officer Mansker can be expected to argue that off-duty officer Mansker, sworn to uphold the peace and seeing a motorist driving erratically in the middle of the night, tried to get the motorist to stop so that the officer could determine if he was impaired. When Mr. Foley finally stopped his car and got out, Mr. Foley started walking toward the officer even after the officer identified himself as an officer and asked him to stop. When Mr. Foley made what reasonably appeared to the officer to be a threatening move toward his waistband, the officer, reasonably believing the man to be reaching for a weapon, shot the man in the leg to remove the threat. Moreover, even assuming that Officer Mansker was in some way negligent, any damages must be reduced by the extent to which Mr. Foley also acted unreasonably in the incident.
Under California law, police officers “retain peace officer status and authority, both during and beyond regular duty hours.” ( Melendez v. City of Los Angeles (1998) 63 Cal.App.4 th 1, 8-9, citing People v. Derby (1960) 177 Cal.App.2d 626, 630.) That means, the defense will argue, that an off-duty officer, such as Officer Mansker, had the power to stop a driver he observed driving erratically.
Mr. Foley’s Claimed Damages and How They May Be Proved
The complaint that Mr. Foley filed does not give a damages figure. Given that the salary he gave up for last year alone was $775,000, it is expected that if Mr. Foley wins his lawsuit, the verdict will be at least seven figures and more likely eight figures. The defense team will have accounting experts testify about the amount of his past lost income and the future income Mr. Foley is reasonably certain to lose. (Board of Approved Jury Instructions 14.11, 14.12.) Mr. Foley also will have doctors testify about the substantial medical bills that Mr. Foley has incurred, and is reasonably certain to incur in the future, to deal with his injuries. On top of that, if the defendants or either of them is liable to Mr. Foley, Mr. Foley will be entitled to general damages for pain and suffering. And there also is a claim against Officer Mansker for damages to punish him, punitive damages, that would depend on finding that Officer Mansker acted intentionally in injuring Mr. Foley.
It has been reported that Mr. Foley forfeited hundreds of thousands of dollars because he couldn't play this past season. Mr. Foley will rely heaving on an accounting expert to determine how much he should recover if, as Mr. Foley’s lawyer has publicly suggested, Mr. Foley is unable ever to play football again. The answer to the question will depend on how long it is reasonably certain Mr. Foley could be expected to play and how much he could be expected to earn during the rest of his career as a linebacker. One question the expert may be expected to address is the length of the average NFL linebacker’s career. From that amount, a court would have to subtract the amount Mr. Foley earned, or with reasonable effort could have earned, doing something else for a living. It is reasonable to assume that whatever else Mr. Foley does, he probably will not make as much as he did as a player.
If Mr. Foley recovered a large judgment based on testimony he could never play football again, and it turns out later that he is able to resume his football career, he would not Foley have to return some of the money. The recovery of future lost income would be based on future probabilities. If a judgment he recovers survives appeal, he would keep all of the money even if later turns out he does not lose as much income in the future as he projected at trial that he would.
Responsibility for any Judgment
If Officer Mansker is found to have acted in the course and scope of his duties as a City of Coronado police officer in shooting Mr. Foley wrongfully, the City would have to pay any judgment. Under California Labor Code section 2802(a), an employer is responsible “for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties . . . .” If he is found liable for punitive damages, meaning that he acted intentionally in wrongfully harming Mr. Foley, Officer Mansker would have to pay those damages himself and even personal insurance would not cover such an award.
Lawsuits against Police Departments Have Mixed Record of Success
According to websites of some lawyers who have brought lawsuits against law enforcement agencies, settlements and verdicts against police officers and departments for police shootings can reach into the hundreds of thousands and even the millions of dollars. But that is not always the case, not even when the person shot was affiliated with the NFL.
Remember Demetrius DuBose? He was the former Tampa Bay Buccaneer linebacker who was shot 12 times by police in Pacific Beach in July of 1999. In 2003, a San Diego federal jury found that the two officers had acted reasonably under the circumstances. Four months later, another federal jury cleared a different officer sued for using excessive force against a man who died while the officer was taking him into custody.
