Original Appeal S.D. Cal. No. 3:07-cv-01738-DMS-JMA
John J. Sansone and Thomas E. Montgomery, County Counsel, and Morris G. Hill, Deputy County Counsel, for Defendants and Appellants.
Dennis J. Herrera, City Attorney (San Francisco), Joanne Hoeper, Chief Trial Deputy, and Peter J. Keith, Deputy City Attorney, for League of California Cities and California State Association of Counties as Amici Curiae on behalf of Defendants and Appellants.
Gomez Law Group and Alvin M. Gomez for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion): Morris G. Hill, Deputy County Counsel, Alvin M. Gomez
Sheriff’s deputies shot and killed Shane Hayes when he came toward them with a large knife in his raised right hand. The deputies had come to the home in response to a call from a neighbor who said she had heard screaming. When the deputies arrived, Shane’s girlfriend, Geri Neill, told them that earlier in the evening, Shane had tried to kill himself. The deputies entered the house, and the incident that led to this lawsuit then transpired.
Shane’s daughter brought this action in federal district court, alleging both federal and state claims for relief. 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: “Whether under California negligence law, sheriff’s deputies owe a duty of care to a suicidal person when preparing, approaching, and performing a welfare check on him.” (Hayes v. County of San Diego (9th Cir. 2011) 658 F.3d 867, 868.) 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. 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.
San Diego County Sheriff’s Deputy Michael King arrived at Shane’s residence in Santee shortly after 9:00 p.m. on September 17, 2006, in response to a neighbor’s call. Shane’s girlfriend, Geri Neill, met Deputy King at the front door. Neill said that Shane had tried to kill himself earlier that evening by inhaling exhaust fumes from his car, Shane had tried to harm himself on other occasions, and she was concerned for his safety. She said no guns were in the house. Deputy King did not ask whether Shane was under the influence of alcohol or drugs.
A few minutes later, Deputy Sue Geer arrived and learned from Deputy King that a potentially suicidal man was in the house. The two deputies entered to determine whether Shane was a danger to himself. They were unaware that Shane had been drinking heavily and that four months earlier he had been taken into custody after a suicide attempt with a knife. With their guns holstered, the deputies walked into the living room and saw Shane 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.
Plaintiff Chelsey Hayes is Shane’s daughter, who was 12 years old when the shooting took place and did not observe the shooting. On September 4, 2007, acting through a guardian ad litem, she filed in federal district court a complaint alleging three federal law claims and two state law claims. The three federal claims were against the County of San Diego and Deputies Geer and King, asserting in various ways a violation of Shane’s right under the federal Constitution’s Fourth Amendment “to be secure... against unreasonable searches and seizures” and a violation of plaintiff’s own right under the federal Constitution’s Fourteenth Amendment not to be “deprive[d of]... liberty... without due process of law” (specifically, her liberty interest in the continuing companionship of her father). Of the two state claims, one was against the County of San Diego and Deputies Geer and King, alleging negligence as regards the confrontation with Shane; the other state claim was against the County of San Diego only, alleging negligent hiring, training, retention, and supervision of its employees.
The federal district court granted summary judgment in favor of defendants on all claims. The court ruled that plaintiff had standing to assert her federal claims, but that she could not prevail on those claims. The court noted the agreement of all eyewitnesses that, at the time of the shooting, Shane was walking toward the deputies while holding a large knife in a threatening manner. These witnesses placed Shane no further than eight feet away from the deputies, and perhaps much closer. 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’ preshooting conduct did not “rise to the level of an independent Fourth Amendment violation.” The court next rejected plaintiff’s assertion that the deputies violated her due process right under the federal Constitution’s Fourteenth Amendment, as it found no evidence of “a purpose to harm that was unrelated to legitimate law enforcement objectives.” Finally, in light of its rulings as to Deputies King and Geer, the federal district court rejected plaintiff’s related federal claims against the County of San Diego.
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). Those two cases, in turn, relied on this court’s decision in Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland), which set forth factors to be considered in deciding whether a defendant owes a duty of care in a particular situation. The state Court of Appeal in Adams applied this court’s Rowland test and concluded that law enforcement personnel owe no duty of care with regard to efforts they undertake to prevent a suicide. In Munoz, the same appellate panel extended that holding, concluding that law enforcement personnel owe no duty of care with regard to preliminary conduct and decisions that later give rise to a dangerous situation in which the use of deadly force is justified.
The federal district court next considered plaintiff’s second state claim, which sought to hold the County of San Diego liable for negligent hiring, training, and retention of Deputies King and Geer. Citing a state appellate decision in de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, the federal district court stated that plaintiff had failed to identify any statute that supported such a theory of recovery against a governmental entity, and it therefore rejected the claim.
Plaintiff appealed. The Ninth Circuit issued a decision that it later withdrew (Hayes v. County of San Diego (9th Cir. 2011) 638 F.3d 688), and then it asked us to determine whether the state Court of Appeal decisions in Adams, supra, 68 Cal.App.4th 243, and in Munoz, supra, 120 Cal.App.4th 1077, remain good law in light of our later decision in Hernandez v. City of Pomona (2009) 46 Cal.4th 501 (Hernandez). (See Hayes v. County of San Diego, supra, 658 F.3d at p. 873.)
In Part A of this section, we discuss the existence of a duty by peace officers to act reasonably when using deadly force, including their duty to act reasonably with regard to their preshooting conduct. In Parts B and C, we summarize the two California Court of Appeal decisions on which the federal district court relied in concluding that in regard to their preshooting conduct, the officers here owed no duty to plaintiff, whose father ...