— I respectfully dissent. As the majority opinion explains, at issue here is the applicability of Evidence Code section 669 and its presumption of negligence. We must decide whether noncom*248pliance with a police department manual, containing guidelines regarding the use of firearms by police officers, invokes the statutory presumption. As will appear, contrary to the majority’s holding, I would conclude that section 669 is inapplicable.
Section 669 applies only to a statute, ordinance or regulation of a “public agency,” and it is certainly arguable that a police department manual should not be considered a public agency regulation under that section. (Accord, Vallas v. City of Chula Vista (1976) 56 Cal.App.3d 382, 387-388 [128 Cal.Rptr. 469].) Yet, my objection to the majority’s analysis focuses on an entirely different problem. We have held that section 669 requires a showing that the ordinance or regulation in question was “designed to protect persons in plaintiff’s class from the type of injury which in fact occurred.” (Mark v. Pacific Gas & Electric Co. (1972) 7 Cal.3d 170, 183, fn. 10 [101 Cal.Rptr. 908, 496 P.2d 1276]; see Vesely v. Sager (1971) 5 Cal.3d 153, 164-165 [95 Cal.Rptr. 623, 486 P.2d 151].) In other words, the regulation or other enactment must prescribe a standard of care by which to measure one’s legal duty to others. The reason for the foregoing rule is clear: it would be highly improper and unfair to base a presumption of negligence solely upon the violation of an enactment which was not intended to create a duty of care.
In the present case, the trial court expressly found that the police manual was not intended as a standard of care, but was merely a set of guidelines describing departmental policies regarding firearm use. Specifically, the court found that the manual “. . . though it may serve as a guideline for the conduct of Long Beach police officers, does not constitute a minimal standard of care for the use of firearms by . . . police officers.” The court further found that the officer’s failure to comply with the manual “. . . does not constitute a negligent or a wrongful act, so long as his conduct was within the permissible limit of the California Penal Code and it was within such limits [since] . . . Officer Vershaw, in firing his weapon at Roland Peterson, used justifiable deadly force within the permissible limits of Section 196 of the California State Penal Code.”
In the trial court’s view, to which I fully subscribe, a presumption of negligence properly cannot be based upon violation of internal, departmental policies which were not intended as minimum standards of care. As stated in a recent case involving the identical manual provision, “The purpose of the regulation is to provide training and guidance to the officer-so that he will not get into a situation where a plaintiff could claim that he used excessive force.” (Long Beach Police Officers Assn. v. City of Long *249Beach (1976) 61 Cal.App.3d 364, 376 [132 Cal.Rptr. 348].) In other words, the manual was intended to encourage restraint over and above the limits imposed by law, in order to protect the officer and his employer from civil liability. It is highly ironic, I suggest, that guidelines which were intended to shield against civil suits may now furnish the sole basis for imposing such liability.
The trial court’s determination that the police manual was not intended to establish a minimum standard of conduct was so clearly correct that this plaintiff abandoned the point on appeal. As he stated in his opening brief before the Court of Appeal, the trial court “correctly ruled that the Police Department policy against . . . use of firearms did not rise to the level of a statute or ordinance and therefore invoke the doctrine of negligence per se . . . .” (Italics added.) Further, in his closing brief, plaintiff conceded that “there is no dispute as to the rule . . . that the violation of the Police Manual Procedure will not be deemed the equivalent of the violation of a statute or ordinance [under section 669] . . . .” (Italics added.)
Despite plaintiff’s unqualified concession, however, the majority inexplicably resurrects the point. The obvious, and unfortunate, result of its present holding will be to inhibit the preparation and publication of sorely needed departmental guidelines on the subject of restraint in the use of deadly weapons. Indeed, respectable authorities share my concern in this regard. The American Civil Liberties Union (ACLU), along with several like organizations appearing herein as amici curiae, implore us to refrain from holding that violation of a police department manual may invoke a presumption of negligence. Amici observe that “A judgment finding liability on the basis of a departmental rule of conduct alone will simply deter; police depártments from making rules of conduct at all, because of their fear of imposing unnecessary civil liability.” The American Bar Association (ABA) agrees: “Police administrators will need both support and encouragement from legislatures and courts in the development, implementation, and continual review of the administrative rule-making process .... [if] In many instances, necessary administrative policies should reflect an effort by police administrators to require police officers to follow procedures that are not necessarily required by the Constitution or by state law. For example, the formulation of policies on protection of First Amendment rights, on restrictions on the use of force, or on equal protection in selective enforcement hopefully will be more restrictive than existing statutes or interpretation of the law may require. To stimulate such timely administrative policy-making, a determination by a *250court of a violation of an administrative policy should not be the basis for excluding evidence in a criminal case .... Nor should a determination of violation necessarily provide for mandatory subsequent civil or criminal liability of the police officer involved. Aside from encouraging administrative rulemaking, this approach could have the collateral benefit of stimulating more prompt and effective administrative action by police agencies against police officers engaging in misconduct.” (Italics added; ABA Project on Stds. for Crim. Justice, Stds. Relating to the Urban Police Function (1973) pp. 134, 137.)
The majority opinion bluntly rejects the foregoing policy and admonition asserted by both the ACLU and the ABA; no reason whatever is furnished in explanation thereof. (Ante, p. 246, fn. 7].)
It is entirely reasonable to conclude that the departmental manual at issue herein was designed to promote police procedures regarding firearm use which are considerably more restrictive than the procedures presently required by law. (See, e.g., Pen. Code, § 196 [justifiable homicide by police officers]; Murphy v. Murray (1925) 74 Cal.App. 726 [241 P. 938].) Indeed, under present law, an officer is immune from civil liability if he acts in good faith under the apparent authority of an enactment such as Penal Code section 196. (Gov. Code, § 820.6.) As the trial court noted, the evidence failed to show any intent by the city or its police department to modify these existing legal requirements or to declare a minimum standard of care for purposes of measuring an officer’s legal duty of care toward third persons. Accordingly, section 669 was clearly inapplicable.
I would affirm the judgment.
Clark, J., and Manuel, J., concurred.
Respondents’ petition for a rehearing was denied July 12, 1979. Clark, J., Richardson, J., and Manuel, J., were of the opinion that the petition should be granted.