Why not a Bane Act claim?

Enacted to combat hate crimes and often used in police misconduct cases, The Bane Act is a useful if little known tool

2014 December

If you’ve never seen a Bane Act claim (Cal. Civ.Code, § 52.1), you’re not alone. Despite having been on the books for nearly three decades, the Bane Act was barely used prior to the mid-2000s, and even then, has been slowly growing into a significant source of litigation. The apparent absence of interest is a bit surprising given the potential for Bane Act claims. In addition to having language broad in its scope of legally operative conduct with no limitation on who it may be asserted against, it also contains statutorily provided punitive damages, and, as if that were not enough, attorney’s fees.

This article provides an overview of the nuts and bolts of the Bane Act, and highlights its potential in a variety of contexts. While commonly used as a complement to Section 1983 and Monell claims in federal court, and may also serve as an independent claim which provides the ability to avoid federal court altogether in such actions; the reach of the Bane Act extends far beyond police-misconduct cases. The scope of actionable conduct which can prompt a Bane Act claim is substantial, ranging from employment discrimination to even claims for elder abuse along with myriad other tortious acts. More impressive, though, are the damages authorized by the Bane Act, which include punitive damages and attorneys’ fees. Given this scope, Bane Act claims should regularly be considered when preparing to plead a case.

Who can be sued for what?

Section 52.1, the Tom Bane Civil Rights Act, authorizes suit against anyone who by threats, intimidation, or coercion interferes with the exercise or enjoyment of rights secured by the state or federal Constitutions or laws without regard to whether the victim is a member of a protected class. (Civ. Code, § 52.1.) To obtain relief under Section 52.1, a plaintiff does not need to allege that a defendant acted with discriminatory animus or intent; liability only requires interference, or attempted interference with, the plaintiff’s legal rights by the requisite threats, intimidation, or coercion. (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 841-843 (“Venegas I”).) “The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.” (Austin B. v. Escondido Union Sch. Dist. (2007) 149 Cal.App.4th 860, 883.)

Bane Act does not require discrimination or hate to create liability

The Bane Act was enacted in 1987 as a response to the Legislature’s belief that hate crimes were increasing at an “alarming” rate. (In re M.S. (1995) 10 Cal.4th 698, 706, fn. 1, citing In re Joshua H. (1993) 13 Cal.App.4th 1734, 1748, fn. 9; Bay Area Rapid Transit Dist. v. Superior Court (1995) 38 Cal.App.4th 141, 144.) However, despite the reason for the legislation’s creation, the Bane Act did not, and never has, included any language requiring hate or discrimination as a prerequisite to liability. Nevertheless, because of a perceived legislative intent, early appellate decisions attempted to read discrimination into the law by requiring that the plaintiff have a protected characteristic listed under the Ralph Act – a separate but related set of hate-crime statutes – and that the interference giving rise to the Bane Act claim arise from that protected characteristic. (See e.g. Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797, 1809 [“an action brought under § 52.1 must allege that the plaintiff who claims interference of his or her rights also allege that this interference was due to his or her” protected characteristic “as set forth in § 51.7.”]; Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 111; Nelson v. City of Irvine (9th Cir. 1998) 143 F.3d 1196, 1206-07; Gaston v. Colio (S.D. Cal. 1995) 883 F. Supp. 508, 510.)

In 2000, this line of cases was explicitly overruled by the Legislature. (Civ. Code, § 52.1, subd. (g) was revised to read that Bane Act claims are “independent of any other action, remedy, or procedure … including” a claim brought pursuant to the Ralph Act.) In an amendment to section 52.1, the Legislature tersely declared that the Court of Appeal had misconstrued the Bane Act, which “does not require the individual whose” rights were violated “to be a member of a protected class.” (West’s Annotated Civ. Code, § 52.1, Historical and Statutory Notes to 2000 Legislation.) Thereafter, in 2004, the California Supreme Court acknowledged the effect of this amendment, stating that the liability created under the Bane Act does not require that “defendants acted with discriminatory animus or intent….” (Venegas I, supra, 32 Cal.4th at pp. 841-43.)

The Legislature’s 2000 amendment speaks volumes as to the intended breadth of the Bane Act. Bane Act claims simply do not require any showing of hate or discrimination. This not only removes a substantial restriction on the scope of actionable conduct, but also opens up the universe of injured individuals to include not just those within protected classes. As such, in pleading a section 52.1 claim, it is not necessary to allege that the defendant acted with discriminatory animus or intent.

Conduct creating liability under the Bane Act

The actionable conduct of section 52.1 can be broken down into three components: (1) an interference, or attempted interference, with (2) the plaintiff’s legal rights by (3) threats, intimidation, or coercion. Interestingly, many of the operative terms, including “interferes,” “threats,” “intimidation” and “coercion,” are not defined in the Bane Act, and thus leaving it, at least at this point, to be determined by the courts.

The term “interference” has generally been taken to mean “violate.” (See, e.g., Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338 [explaining that for Bane Act purposes, “an individual acting privately can violate, and hence interfere with, our state Constitution’s right to privacy”]; City of Simi Valley v. Superior Court (2003) 111 Cal.App.4th 1077, 1087 [the Bane Act “permits an individual to sue for damages where his or her constitutional rights are violated.”].) However, the concept underlying the term “interfere” is not without some nuance. In the fairly recent case Shoyoye v. County of Los Angeles, the Court explained that “[t]he essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.” (Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 955-56.) In other words, not only does interference mean violating in its positive sense, (i.e., preventing the plaintiff from exercising a legal right), but it can also mean forcing the plaintiff to do something they have no legal obligation to do.

As explicitly stated in section 52.1, liability does not require actual interference with a plaintiff’s legal rights. Rather, attempted interference is completely adequate to give rise to a Bane Act claim. (Civ. Code, § 52.1, subds. (a), (b); Ramirez v. County of Los Angeles (C.D. Cal. 2005) 397 F. Supp. 2d 1208.)

In Ramirez, after the plaintiff-arrestee was acquitted on kidnapping charges, he filed suit against the detective and county. The plaintiff argued that by threats, intimidation and coercion, the detective attempted to force plaintiff to abandon his right against self-incrimination by confession and thus violated Section 52.1. The detective moved for summary adjudication of the claim arguing that even if he threatened plaintiff, those threats are not actionable because there was no resulting interference with plaintiff’s constitutional rights. The district court rejected this argument, holding: “§ 52.1 protects not only against actual interference with constitutional rights, but also against attempted interference.” (Ramirez (C.D. Cal. 2005) 397 F. Supp. 2d at p. 1229 (emphasis in original).)

The mere fact that a person was never actually prevented from exercising a legal right, or actually forced to do something they were not legally obligated to do, does not prevent that person from bringing a Bane Act claim.

The second element of the Bane Act is the legal rights that have been interfered with. As described in section 52.1, a plaintiff’s legal rights include “rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.” (Civ. Code, § 52.1, subd. (a).) As of this time, no reported Bane Act case has provided a definition of the term “laws of the United States” or “laws of this state.” In Venegas I, the California Supreme Court repeatedly referred to “laws of this state” as “statutory rights.” (Venegas I, supra, 32 Cal.4th at pp. 841-43.)

However, in construing the exact same term in the context of the Fair Employment and Housing Act (“FEHA”), [(Gov. Code, § 12900 et seq.)], the California Supreme Court found that the phrase “laws of this state” includes both statutes and common law. (Rojo v. Kliger, 52 Cal.3d 65, 75-76.) There is nothing in section 52.1, or any of the other provisions of the Bane Act, suggesting that “laws of this state” should have a narrower or different meaning within the Bane Act than this term was given within FEHA.

Finally, probably the most nebulous part of the Bane Act, are the terms “threat,” “intimidation” or “coercion.” Beyond not being defined in section 52.1, there has been little movement by the courts to construe these terms. To the extent that these terms have been given a meaning, the meaning assigned seems to be their ordinary and common meaning. (See, e.g., Zamora v. Sacramento Rendering Co. (E.D. Cal. 2007) 2007 WL 137239, *8, n. 6 [defining intimidation according to its ordinary meaning as “to make timid or fearful”]; McCue v. S. Fork Union Elem. Sch. (E.D. Cal. 2011) 766 F.Supp.2d 1003, 1011 [explaining “[f]or the purposes of the Bane Act, the term ‘threat’ means ‘an “expression of an intent to inflict evil, injury, or damage to another.”]; see also Ex parte Bell (1942) 19 Cal.2d 488, 526 [The ordinary meaning of “coercion” is “the application to another of such force, either physical or moral, to constrain him to do against his will something he would not otherwise have done.”].)

Although a complaint need not use the statutory terms “threats, intimidation, or coercion,” it must allege facts from which the presence of threats, intimidation, or coercion may be inferred. (Sanchez v. City of Fresno (E.D. Cal. 2012) 914 F.Supp.2d 1079, 1118, citing Lopez v. County of Tulare (E.D.Cal. Jan. 6, 2012) 2012 WL 33244, *11.) The test for whether a defendant violates Section 52.1 for interference with a legal right by threats or intimidation is whether a reasonable person, standing in the shoes of the plaintiff, would have been intimidated by the actions of the defendants. (Richardson v. City of Antioch (2010) 722 F.Supp.2d 1133, 1147.)

A caveat to be aware of concerning this element of a Bane Act claim is that although there is no authority specifically addressing whether violence or threat of violence is a necessary component of a “threat,” “intimidation,” or “coercion,” the Judicial Council of California Advisory Committee on Civil Jury Instructions (“CACI”) incorporates an element of violence within the prescription for threats, coercion or intimidation. (See CACI 3066.) But there is no reason to believe that violence is a necessary component. As such, CACI 3066 does not reflect the current construction of the law.

The only express exception, and it is, arguably, the exception that proves the rule, is that liability may not be based on “speech alone” unless “the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat.” (Civ. Code, § 52.1, subd. (j).) In other words, the only place where section 52.1 specifically requires the threat of violence is where the threats, intimidation or coercion are being accomplished by speech alone, otherwise, violence does not appear to be a prerequisite.

It is precisely the lack of attention litigants have devoted to the Bane Act, and thus the lack of case authority on this statute, that creates these appealable issues regarding just what the law is and how the jury should be instructed. With the evolving landscape surrounding Bane Act claims, parties should pay particular attention to the jury instructions provided to ensure that the most current and accurate description of the law is provided to the jury.

Another nuance within this element that defendants are eager to exploit is the notion that the showing of “threats, intimidation or coercion” must be separate and independent from the wrongful conduct constituting the rights violation. Seizing upon selectively plucked language in the recent Shoyoye decision, the argument has been advanced that in order to maintain a claim under the Bane Act, the threatening, intimidating or coercive conduct at issue must be separate from the interference with constitutional or statutory rights. But such an interpretation conflicts with plain language of the statute and is premised upon a flawed understanding of Shoyoye.

Shoyoye involved a wrongful-detention case where the plaintiff had been over-detained by approximately 16 days as a result of an unintentional clerical error. (Shoyoye, supra, 203 Cal.App.4th at p. 950.) The evidence at trial revealed that none of the County employees wrongfully detained the plaintiff with actual or presumed knowledge that he should have been released. In finding that the evidence was insufficient to support a violation of the Bane Act, the Shoyoye court explained that a claim under section 52.1 cannot simply be premised upon a constitutional violation − occurring as a result of “mere negligence rather than a volitional act intended to interfere with the exercise or enjoyment of the constitutional right”− where the element of coercion is implicit in the constitutional violation. (Id. at pp. 957-959.) As noted by the Court, Section 52.1 was not intended to redress harms “brought about by human error rather than intentional conduct.” (Id. at p. 959.)

By concluding that “not every wrongful detention is a violation of section 52.1,” the Court implicitly recognized that there may be instances where the conduct giving rise to the wrongful detention also support a finding of “threats, intimidation, or coercion” to meet the statutory elements of Section 52.1. (Id. at p. 950.) The very fact that the Court engaged in the analysis as to whether an unintentional constitutional violation can meet the elements of section 52.1 reflect that an intentional constitutional violation may itself meet the elements of section 52.1. As noted by one federal district court, “[t]he Shoyoye court thus acknowledged that a Bane Act claim could be based on an arrest without probable cause, even if no ‘threat, intimidation, or coercion’ were shown separate and apart from that inherent to the underlying constitutional violation.” (Holland v. City of San Francisco (N.D.Cal. 2013) C10-2603 THE, 2013 WL 968295 *10; see also Little v. City of Richmond (N.D.Cal. 2013) C-13-02067 JSC, 2013 WL 5663124, *4 (after highlighting Shoyoye’s distinction of Venegas I, the district court noted: “Thus, Section 52.1 does not necessarily require threats, intimidation, or coercion independent of the violation of the constitutional right.”).)

Section 52.1 provides that a cause of action where a person “interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any individual or individuals” of constitutional or statutory rights. (Civ. Code, § 52.1(a).) Nothing in the statute prescribes that the conduct amounting to a threat, intimidation or coercion cannot also be the conduct alleged to be a violation of civil rights. (See Bass v. City of Fremont (N.D. Cal. 2013) C12-4943 THE, 2013 WL 891090, *5.)

Against whom can a claim be asserted?

More expansive even than the actionable conduct is the scope of potential defendants to a Bane Act claim. Section 52.1 allows claims to be brought against “a person or persons, whether or not acting under color of state law ….” (Civ. Code, § 51, subd. (a).) The scope of this is as broad as it seems. It appears that the word “person” includes the panoply of non-biological legal persons, including corporations and public agencies. [See Civ. Code, § 14 (defining “person” to include a corporation); see, e.g., Jones v. Kmart Corp., 17 Cal.4th 329 (1998) (reversing liability against a corporation under the Bane Act on unrelated substantive grounds, but never disputing the liability of a corporation under the Bane Act); Gatto v. County of Sonoma, 98 Cal.App.4th 744 (1st Dist. 2002) (affirming Bane Act liability against a county).]

Faced with accompanying Section 1983 and Monell claims, several federal courts have had an opportunity to analyze whether a “person” as described in the Bane Act includes a government entity and have expressly concluded that it does. (See Sanchez v. City of Fresno (E.D. Cal. 2012) 914 F. Supp. 2d 1079, 1117 [rejecting the City argument that because Section 52.1 is directed at “a person or persons” a Bane Act claim cannot lie against a municipality]; Aguilar v. City of S. Gate (C.D. Cal. Jan. 25, 2013) 2:12-CV-10669-ODW, 2013 WL 300914 [the Court finds that the City is a “person” within the meaning of section 52.1]; Dorger v. City of Napa (N.D.Cal. Aug. 31, 2012) 2012 WL 3791447 *7 [“The City offers no authority for the notion that it cannot be considered a ‘person’ ... to the contrary, the authorities interpreting the statute show that a public entity can be liable for ‘misconduct that interferes with federal or state laws, if accompanied by threats, intimidation, or coercion, and whether or not state action is involved’”]; Cameron v. Buether (S.D.Cal. March 23, 2010) 2010 WL 1202318, *5 [rejecting City of San Diego’s argument that the statute did not apply to government entities].)

Of note, the inclusion of the phrase “whether or not acting under color of state law” extends liability under the Bane Act to both governmental agencies and persons as well as private parties who are not acting under color of state action. (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 333-34.) Which, when combined with the fact that the defense of qualified immunity does not apply to Bane Act Claims, completely opens the doors of liability against governmental actors. (Venegas v. County of Los Angeles (2007) 153 Cal.App.4th 1230, 1243-47 (“Venegas II”).) Thus, section 52.1 is a state law analogue to section 1983, (Assembly Committee on the Judiciary, Bill Analysis, AB 2719 (as introduced February 25, 2000)), but it differs from section 1983 in three important respects: it applies to private actors as well as to government agents, its liability is limited to violations of legal rights accomplished “by threats, intimidation or coercion,” and there is no qualified immunity. (Ibid.)

Because a Bane Act claim can thus be asserted directly against a public entity, and because “[g]overnment entities have respondeat superior liability for their employees’ Bane Act violations” (Gant v. County of Los Angeles (C.D. Cal. 2011) 765 F. Supp. 2d 1238, 1249-50), Section 52.1 provides a viable claim against a City both direct in nature and vicarious. As most attorneys involved in cases against municipalities are keenly aware, having both direct and vicarious liability against a public entity is monumental in establishing a viable claim.

With respect to those looking to add a Bane Act violation to a Section 1983 or Monell claim, another statute to perhaps include in your complaint would be Civil Code section 51.7. Section 51.7 provides that all persons have the right to be free from intimidation by threat of violence on account of any protected characteristic, including sex. Civil Code section 52, subdivision (b), provides the mechanism for asserting a violation of Section 51.7: “Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable …” Civ. Code, § 52(b) (emphasis added). Pursuant to these statutes, it appears that an officer may be liable for denying a plaintiff the right to be free from violence or the threat of violence based on a protected characteristic, and, where there are facts supporting Monell liability, the City may also be liable for its conduct in aiding, inciting or conspiring in that denial under Section 52(b).

The Bane Act may also prove to be an effective tool in class actions. Consider a situation where several individuals, perhaps employees of a large corporation, students at a public university, or inmates in a prison, suffer a violation of a legal right with only minimal economic damages. While a class action would likely be opposed on the ground that the damages to each claimant are too particular to support commonality for class certification, as addressed below, damages available under the Bane Act include statutory penalties which are uniform in nature. By asserting a Bane Act claim on behalf of the class members, requesting statutory penalties as damages, the argument that the damages are too unique to support certification fails.

In short, under the Bane Act there are essentially no restrictions on who or what can be sued, so long as they are denying a constitutional or statutory right. The universe of possible defendants is enormous: anyone and everyone, including private individuals, corporations, public agencies, and governmental officials are all subject to Bane Act claims.

It is worth pointing out that a large share of Bane Act claim cases are paired with 1983 claims, and are litigated in federal court. Thus most of the case law construing Section 52.1 comes from the courts located in the Ninth Circuit. However, because of the expansive purview of the Bane Act which largely overlaps with 1983 claims, and because of the associated damages and attorneys’ fees that the Bane Act provides, it is worth considering as a substitute to a Section 1983 claim so as to avoid having to litigate the action in federal court altogether.

Damages

Saving the best for last is the damages recoverable for a Bane Act violation. Section 52.1, subdivision (b) states that any individual whose rights have been interfered with by threats, intimidation or coercion, “may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured.” (Civ. Code, § 52.1.) Section 52 permits such relief as actual damages, statutory damages (including civil penalties), exemplary damages, and attorneys’ fees. (Civ. Code, § 52.) Additionally, Section 52.1, subd. (h) provides that in a civil action alleging a Bane Act claim brought by an individual plaintiff “the court may award the … plaintiff reasonable attorney’s fees.”

The Bane Act is the cause of action to bring

If you are not convinced of the scope of power of this statute, then consider the California Supreme Court Justice Marvin R. Baxter’s concurrence in Venegas v. County of Los Angeles. There, the Justice wrote:

…the Legislature … might have inadvertently transformed section 52.1 from its originally intended purpose as a weapon in the arsenal of interrelated statutory provisions designed to combat the rising incidence of hate crimes, to a generally applicable catchall provision that will encourage claimants to seek section 52.1 ‘s sweeping remedies – including compensatory money damages, very substantial fines ($25,000), attorney fees, and other equitable relief – in commonplace tort actions to which those special statutory remedies were never intended to apply. …

(Venegas, 32 Cal.4th at p. 844.)

Justice Baxter went on to note:

Pragmatically speaking, the limitation in section 52.1 that the right being interfered with under section 52.1 be a right guaranteed by any state or federal law or constitutional provision is hardly a limitation at all. And although the proscribed conduct is further delineated by the requirement that it be delivered in the form of a threat, intimidation, or coercion, it should not prove difficult to frame many, if not most, asserted violations of any state or federal statutory or constitutional right, including mere technical statutory violations, as incorporating a threatening, coercive, or intimidating verbal or written component.

(Id. at pp. 850-51.)