Liability for use of deadly force under California, federal law

On Sept. 17, 2006, deputies arrived at the home of Shane Hayes in response to a call from a neighbor who heard screaming coming from Hayes' home. When the first deputy arrived, he spoke with Hayes' girlfriend who indicated that she and Hayes had been arguing about Hayes' attempt to commit suicide earlier in the evening by inhaling exhaust, and that Hayes had tried to harm himself before.

Minutes later, a second deputy arrived. The deputies entered the home to check on Hayes. They were not aware, because they did not inquire, that Hayes was intoxicated, and that he had been taken into custody four months prior for a suicide attempt involving a knife.

Upon entering Hayes' residence, the deputies found Hayes in the kitchen. One ordered Hayes to show his hands. Hayes complied and walked a few steps towards the deputies, revealing a large knife pointed down in his raised hand. The deputies simultaneously drew their guns and fired at Hayes, who was between six and eight feet away. Hayes did not survive.

Hayes' minor daughter filed suit against the deputies and the county, alleging, among others, violations of Hayes' Fourth Amendment rights and a state negligence claim. The district court granted summary judgment in favor of defendants, reasoning that the deputies' use of force was reasonable under the Fourth Amendment and California negligence law in light of Hayes' threatening conduct. The district court rejected the argument that the deputies' negligence provoked the dangerous situation that necessitated the use of force, holding that the deputies did not owe Hayes a pre-shooting duty of care.

On appeal, after noting a lack of uniformity in California negligence law, the 9th U.S. Circuit Court of Appeals certified a question regarding the same to the California Supreme Court. The Supreme Court restated the question as whether "liability can arise from tactical conduct and decisions employed by law enforcement preceding the use of deadly force," and answered in the affirmative. It explained that California and federal law standards regarding the use of force are different. Specifically, that California negligence law "considers the totality of the circumstances surrounding any use of deadly force," whereas Fourth Amendment law "tends to focus more narrowly on the moment when force is used." In other words, even if use of force is considered reasonable under the Fourth Amendment, which does not focus on pre-shooting conduct that may provoke a dangerous situation, it might be considered unreasonable under California negligence law, which focuses on the totality of the circumstances.

Following the answer to its certified question, the 9th Circuit reversed summary judgment on plaintiffs' California negligence claim. Specifically, the court reversed the district's court conclusion that the deputies' use of force was objectively reasonable and concluded that the deputies' duty of reasonable care extended to their pre-shooting conduct.

A Recent Example

On Sept. 22, 2017, Officer Esparza noticed Dillan Tabares standing on the sidewalk. Tabares caught Officer Esparza's attention because he was wearing a sweater on a warm day, walking abnormally, made flinching movements, and looked in Officer Esparza's direction several times. Witnesses at the 7-Eleven nearby noted that Tabares was talking to himself and making hand gestures, and that he looked crazed, out of it, and under the influence.

Officer Esparza decided to speak to Tabares. He parked, exited his vehicle, and asked Tabares to stop walking. Tabares said "no" and told Officer Esparza to leave him alone while continuing to walk away. Officer Esparza instructed Tabares to stop walking away multiple times. Tabares eventually turned towards Officer Esparza and walked towards him in a confrontational manner with fists clenched. Officer Esparza backed up while instructing Tabares to stop. When Tabares failed to, Officer Esparza tased him without any visible effect. Tabares then approached Officer Esparza and punched him in the face, leading the two to fight.

While on the ground fighting, Tabares grabbed at Officer Esparza's belt. Officer Esparza felt Tabares take something from his belt, which turned out to be his flashlight. Officer Esparza then stood up, unholstered his gun, retreated approximately 15 feet away, and saw Tabares holding what he should have known was his flashlight. Three seconds later, Officer Esparza shot Tabares six times, shouted "get down" twice, and shot him a seventh time. Tabares did not survive.

Tabares' mother sued Officer Esparza and the city, alleging, among others, excessive force under the Fourth Amendment and a claim for negligence under state law. The district court entered summary judgment on all claims for defendants. Ms. Tabares only appealed the negligence claim.

The 9th Circuit reversed and remanded, noting that because negligence claims under California law encompass a broader spectrum of conduct than excessive force claims under the Fourth Amendment, genuine issues of material fact existed precluding summary judgment. Tabares v. City of Huntington Beach, 19-56035 (9th Cir. Feb. 17, 2021). Specifically, the court held that a reasonable jury could find Officer Esparza should have suspected Tabares had mental health issues, that he failed to properly deescalate the encounter, and that his decision to fire seven shots was unreasonable, even if an initial threat existed.

Takeaway

Counsel seeking or opposing summary judgment on a negligence claim relating to the use of deadly force should be sure to address tactical conduct and decisions employed by law enforcement preceding the use of deadly force. 