LAW ENFORCEMENT OFFICERS MAY BE LIABLE BASED ON TACTICS PRECEDING THE USE OF DEADLY FORCE
On August 19, 2013, the California Supreme Court held, in the case of Hayes v. County of San Diego, 2013 Cal. LEXIS 6652, that liability for negligence may arise from tactical conduct and decisions employed by law enforcement officers preceding the use of deadly force, when viewed as part of the totality of circumstances.
The California Supreme Court notes that “on appeal from a grant of summary judgment for defendants, the United States Court of Appeals for the Ninth Circuit (see Cal. Rules of Court, rule 8.548) asked us to decide a matter of state law. In granting the Ninth Circuit’s request, we restated the issue as”[w]hether under California negligence law, liability can arise from tactical conduct and decisions employed by law enforcement preceding the use of deadly force. Our response, which is based on long-established state law, is that such liability can arise if the tactical conduct and decisions leading up to the use of deadly force show, as part of the totality of circumstances, that the use of deadly force was unreasonable.” (Emphasis added.)
As stated above, the federal court had granted summary judgment and there was no trial to ascertain facts and circumstances surrounding the officers’ use of deadly force. As such, the California Supreme Court noted that “our task here is limited to deciding a purely legal question; the federal courts will resolve, as a factual matter, whether a finding of liability is appropriate on the facts presented.”
In 2006, San Diego County Sheriffs deputies arrived at the residence of Shane Hayes after receiving a call from a neighbor who heard screaming. Hayes’ girlfriend met deputies at the front door, and informed them that Hayes had tried to commit suicide earlier that evening and that she was concerned for Hayes’ safety.
Deputies did not ask whether Hayes was under the influence of drugs or alcohol at the time, were unaware that he had been drinking heavily and that four months earlier he was arrested after a suicide attempt with a knife. Deputies entered the living room with their guns holstered, and observed Hayes standing in the kitchen.
“Deputy King ordered Shane to show his hands. As Shane did so, he walked toward the deputies, holding in his raised right hand a large knife. The deputies simultaneously drew their guns and fired two shots each at Shane, who was then between two and eight feet away. Shane died from the gunshot wounds.”
Hayes’ daughter sued the County in federal court alleging several causes of action, including claims that deputies were negligent under state law based on their tactical decisions prior to the shooting, and that deputies used excessive force in violation of federal law. The district court granted summary judgment for the County.
“In the federal district court’s view, ‘it was objectively reasonable for the Deputies to conclude that [Shane] posed a significant threat of death or serious physical injury to themselves or others,’ and therefore ‘their use of deadly force was reasonable and did not violate the Fourth Amendment.’ In addition, the court found that the deputies’ preshootingconduct did not ‘rise to the level of an independent Fourth Amendment violation.’”
“The federal district court then turned to plaintiff’s state claims. The court ruled as a matter of law that the deputies’ use of deadly force against Shane was reasonable in light of Shane’s threatening conduct with the large knife, and that therefore the deputies were not negligent in using such force. In rejecting plaintiff’s argument that the deputies negligently provoked the dangerous situation in which the use of deadly force was justified, the federal district court ruled that the deputies owed plaintiff no duty of care with regard to their preshooting conduct and decisions. The court relied on two California appellate decisions: Adams v. City of Fremont, (1998) 68 Cal.App.4th 243 (Adams) and Munoz v. City of Union City, (2004) 120 Cal.App.4th 1077 (Munoz).”
Hayes’ daughter appealed to the Ninth Circuit which issued a decision which it later withdrew. Rather, due to some uncertainty in California law governing this point, the Ninth Circuit asked the California Supreme Court to decide whether under California law, “sheriff’s deputies owe a duty of care to a suicidal person when preparing, approaching, and performing a welfare check on him?”
The California Supreme Court agreed, but restated the question as follows: “whether under California negligence law, liability can arise from tactical conduct and decisions employed by law enforcement preceding the use of deadly force?”
Existence of a Duty
The Supreme Court pointed out that “except when otherwise provided by law, public employees in California are statutorily liable to the same extent as private persons for injuries caused by their acts or omissions, subject to the same defenses available to private persons. (Gov. Code § 820.)”
Furthermore, “in order to prove facts sufficient to support a finding of negligence, a plaintiff must show that [the] defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.”
The Court then stated that “this court has long recognized that peace officers have a duty to act reasonably when using deadly force” and that “the reasonableness of an officer’s conduct is determined in light of the totality of circumstances.”
“Instructive here is our decision in Grudt v. City of Los Angeles, (1970), 2 Cal.3d 575. InGrudt, a police officer in plain clothes, carrying a double-barreled shotgun, approached a car, possibly causing the driver to think he was being robbed or attacked. The driver accelerated the car toward a second plainclothes officer, and then both officers opened fire on the driver, killing him. This court held that the trial court erred in barring a claim of negligence against the officers. Significantly, the shooting in Grudt appeared justified if examined in isolation, because the driver was accelerating his car toward one of the officers just before the shooting. Nevertheless, we concluded that the totality of the circumstances, including the preshooting conduct of the officers, might persuade a jury to find the shooting negligent. In other words, preshooting circumstances might show that an otherwise reasonable use of deadly force was in fact unreasonable.” (Emphasis in original.)
[It should be noted that, nine years after deciding Grudt, the California Supreme Court reaffirmed that decision in the case of Munoz v. Olin, 24 Cal.3d 629. In the Olin case, the Court held that “(d)efendants do not dispute that an officer’s lack of due care can give rise to negligence liability for the intentional shooting death of a suspect. In Grudt v. City of Los Angeles (1970) 2 Cal. 3d 575 this court expressly so held.”]
In the instant case, the Court noted that “because plaintiff did not allege a separate injury from the preshooting conduct of law enforcement personnel, the preshooting conduct is only relevant here to the extent it shows, as part of the totality of circumstances, that the shooting itself was negligent.” Additionally, “because plaintiff did not allege a separate preshooting injury, this case does not raise the question of what independent duty, if any, law enforcement personnel owe with regard to their preshooting conduct, and we have no reason here to decide that question.” (Emphasis added.)
In the Hayes case, the California Supreme Court said, “the federal district court ruled [based on Adams and Munoz] that the sheriff’s deputies owed plaintiff no duty of care with regard to their preshooting conduct, and therefore that they could not be held liable for negligently provoking a dangerous situation in which the use of deadly force was then justified. That conclusion overlooks the long-established principle of California negligence law that the reasonableness of a peace officer’s conduct must be determined in light of the totality of circumstances. (Emphasis added.)
“The Fourth Amendment’s ‘reasonableness’ standard is not the same as the standard of ‘reasonable care’ under tort law, and negligent acts do not incur constitutional liability.” “Also, as the nation’s high court has observed, ‘[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’ (Graham v. Connor (1989) 490 U.S. 386, 396.) In addition, ‘[a]s long as an officer’s conduct falls within the range of conduct that is reasonable under the circumstances, there is no requirement that he or she choose the ‘most reasonable’ action or the conduct that is the least likely to cause harm and at the same time the most likely to result in the successful apprehension of a violent suspect, in order to avoid liability for negligence.’”
Liability for Preshooting Conduct
“(O)ur holding in Grudt clarifies that preshooting conduct is included in the totality of circumstances surrounding an officer’s use of deadly force, and therefore the officer’s duty to act reasonably when using deadly force extends to preshooting conduct. But in a case like this one, where the preshooting conduct did not cause the plaintiff any injury independent of the injury resulting from the shooting, the reasonableness of the officers’ preshooting conduct should not be considered in isolation. Rather, it should be considered in relation to the question whether the officers’ ultimate use of deadly force was reasonable.”
“Although preshooting conduct is included in the totality of circumstances, we do not want to suggest that a particular preshooting protocol (such as a background check or consultation with psychiatric experts) is always required. Law enforcement personnel have a degree of discretion as to how they choose to address a particular situation. Summary judgment is appropriate when the trial court determines that, viewing the facts most favorably to the plaintiff, no reasonable juror could find negligence.”
Adams v. City of Fremont
In Adams, police were called by Patrick’s daughter who said he fired a weapon. They discovered Patrick crouched in the bushes in his backyard, pointing a gun to his chest. Police had entered the backyard with their weapons drawn and ordered the suspect to put his gun down. The suspect ignored this order and told the officers to leave him alone and the officers took cover. Several officers aimed their weapons at the suspect while two officers approached with a barking police dog.
One officer, a trained negotiator, began talking to Patrick, who became angry and told her to leave. The suspect then fired his weapon and the officers, believing the suspect fired at the officers, fired at Patrick. In fact, he shot himself and a medical examination determined that the fatal shot came from Patrick and not from the police.
Patrick’s wife and daughter sued alleging negligence, wrongful death, and certain intentional torts. The jury awarded damages to the plaintiffs. “Answers to special interrogatories indicated that the jury based its finding of police negligence on the events leading up to the shooting, not on the actual shooting itself.”
Ultimately, a divided court of appeals reversed the judgment. “On the issue of negligence, the court concluded that the police officers owed the plaintiffs no duty of care with respect to their preshooting efforts to resolve the situation. In reaching that conclusion, the court applied the test set forth in Rowland v. Christian, (1968) 69 Cal.2d 108, in which we discussed exceptions ‘to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances.’”
“We said: ‘A departure from this fundamental principle involves the balancing of a number of considerations’ including ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’”
“A balancing of the various considerations, Adams concluded, militated against imposing a legal duty on peace officers to prevent a threatened suicide from being carried out.”(Emphasis added.)
Furthermore, “Adams noted the “extremely high” social value of protecting the lives of peace officers involved in a standoff with an armed individual. Having concluded that the defendants had no duty to prevent Patrick’s suicide, Adams then reversed the judgment in the plaintiffs’ favor.” (Emphasis added.)
Munoz v. City of Union City
In Munoz, the court extended the Adams holding to a situation where the suspect’s death was caused by deadly force administered by police, and not by suicide.
There, police discovered the suspect standing in the front doorway of her home with a knife in her hand, threatening her father and daughter who were inside the home. When the suspect began moving towards her father and daughter, while thrusting the knife, police shot and killed her. In finding police did not owe the suspect a duty to act reasonably, the court extended the holding in Adams, making the balancing test applicable in situations where deadly police force results in a suspect’s death.
“Munoz described the earlier decision in Adams as holding ‘that law enforcement officers are shielded from ordinary negligence claims based on their response to public safety emergencies when those efforts prove to be ineffective in preventing self-inflicted harm or harm caused by third parties. Munoz also noted: ‘Here, the focus is not simply on the failure of police to prevent harm, but police conduct that directly inflicted harm. Adams does not go so far as to insulate officers in crisis situations from liability for their own unreasonable use of deadly force.’ Thus, Munoz correctly recognized a factual distinction between a suicide case (which was the type of case at issue in Adams) and a use-of-deadly-force case (as to which this court has long held that peace officers have a duty to act reasonably).” (Emphasis in original.)
“As relevant here, the main distinction between the California Court of Appeal decisions inAdams, and in Munoz, is that Adams was a suicide case, whereas Munoz, like this case, was a use-of-deadly-force case. That distinction is significant because this court has never addressed whether peace officers owe a duty of care when, without any use of deadly force, they merely come to the aid of a suicidal person — the existence of such a duty is not at issue here. This court has, however, long recognized that peace officers have a duty to act reasonably when using deadly force — a duty that is at issue here.”
“(U)nlike the death by suicide in Adams, here Shane’s death was not self-inflicted; rather, it was the direct result of the officers’ use of deadly force. Our case law has long recognized that peace officers have a duty to act reasonably when using deadly force. If plaintiff (Shane’s daughter) is asserting that negligence in the sheriff’s deputies’ preshooting conduct somehow caused Shane to seek his own death at their hands (by coming at them with a large knife), that fact-based theory falls within the totality of circumstances surrounding the shooting and can be litigated in federal court proceedings determining the reasonableness of the deputies’ use of deadly force.”
“The reasonableness of the deputies’ preshooting conduct should not be considered in isolation, however; rather, it should be considered as part of the totality of circumstancessurrounding the fatal shooting of Shane.” (Emphasis in original.)
“The Munoz court may have been influenced by the rule that applies to violations of the federal Constitution’s Fourth Amendment [which] protects against an ‘unreasonable… seizure’ and thus tends to focus more narrowly than state tort law on the moment when deadly force is used, placing less emphasis on preshooting conduct, but if the California Court of Appeal in Munoz was influenced by Fourth Amendment law in reaching its conclusion that [the officer] owed no preshooting duty of care, it did not adequately consider the differences between federal constitutional liability and state tort liability. ‘The Fourth Amendment’s `reasonableness’ standard is not the same as the standard of `reasonable care’ under tort law, and negligent acts do not incur constitutional liability.’”
“Munoz‘s extension of Adams, directly conflicted with our long-standing conclusion that peace officers have a duty to act reasonably when using deadly force, a duty that extends to the totality of circumstances surrounding the shooting, including the officers’ preshooting conduct.”
HOW THIS AFFECTS YOUR AGENCY
Hayes reiterates what has been California law for over forty (40) years – “law enforcement personnel’s tactical conduct and decisions preceding the use of deadly force are relevant considerations under California law in determining whether the use of deadly force gives rise to negligence liability. Such liability can arise, for example, if the tactical conduct and decisions show, as part of the totality of circumstances, that the use of deadly force was unreasonable.” (Emphasis added.)
This case has not significantly changed the law of California since it has, for years, imposed a duty on law enforcement to “act reasonably when using deadly force.” Such an analysis will focus on both the preshooting conduct of officers, as well as the moment when deadly force is used.
Obviously, it is impossible for officers to predict whether a particular stand-off situation will result in the suspect’s suicide, death by police, or arrest. As such, all law enforcement officers should make tactical decisions in these scenarios with the understanding that his/her decisions will be viewed as part of the totality of circumstances and could either form the basis of negligence liability or show that the actions were totally appropriate and justified under the circumstances.
As with all legal issues, it is imperative that you seek out and secure advice and guidance from your agency’s designated legal counsel. As always, if you wish to discuss this case in greater detail, feel free to contact me at (714) 446-1400 or via email at firstname.lastname@example.org.
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