Professor Kenneth Davis has long advocated that police manuals should be viewed as interpretative administrative rules, which would guide police in their daily activities. He argued that police departments should not fear adopting interpretative rules because such rules would not be binding; therefore, the department would not be subject to tort liability if an officer violated such a rule. In Peterson v. City of Long Beach, a police officer violated the police manual when he shot and killed a non-violent fleeing suspect. The California Supreme Court, in an opinion by Justice Frank Newman, cited Professor Davis and his call for police administrative rulemaking. Justice Newman, however, ignored Davis's view that the manual represented nonbinding interpretative rules. Instead, Newman held that the police manual is a regulation of a public entity and the violation of its rules by a police officer carries a rebuttable presumption of negligence. The result of Peterson is that police departments in California are now subject to tort liability when an officer violates the provisions of the department's own manual. Justice Newman had an opportunity to incorporate Davis's view and introduce California police departments to administrative rulemaking. Instead Newman chose to view police manuals as regulations of a public entity and as an additional source of tort liability for police departments.
Police Shootings - Administrative Law as a Method of Control over Police: Peterson v. City of Long Beach,
8 Pepp. L. Rev.
Available at: http://digitalcommons.pepperdine.edu/plr/vol8/iss2/4