Police Liability for Tactical Conduct Preceding the Use of Force-the Implications of Hayes v. County of San Diego
| Publication year | 2014 |
| Author | By Michael R. Linden and Justin B. Atkinson* |
By Michael R. Linden and Justin B. Atkinson*
The Spring 2012 edition of the Public Law Journal featured an article (written by the authors herein) entitled "Can a Lawful Arrest Be Negligent?" This article discussed the issue of whether law enforcement officers owed a legal duty to arrestees to use reasonable care in the tactics employed to effectuate an arrest. While citing authority supporting the existence of a duty to use reasonable force, the article also cited the cases Adams v. City of Fremont ("Adams") and Munoz v. City of Union City ("Munoz") for the proposition that law enforcement officers did not owe a duty to potential arrestees with respect to the tactics utilized prior to the use of force.1
Since the Spring 2012 article was published, however, the foundation of the broad rule of no duty set forth in Adams and Munoz has slowly eroded On August 19, 2013, the California Supreme Court issued a decision in the case Hayes v. County of San Diego that substantially limits the holdings in Adams and Munoz in cases where police officers cause the death of a subject in the field.2 How this change came about is discussed below.
In 2009, the California Supreme Court decided the case Hernandez v. City of Pomona ("Hernandez").3 In Hernandez, George Hernandez was shot and killed by police officers after fleeing arrest. The decedent's relatives originally brought suit in federal court, setting forth both Federal civil rights claims pursuant to 42 U.S.C. section 1983 ("Section 1983"), and a pendent wrongful death claim. A jury found in favor of the defendants on claims for excessive force brought under the Fourth and Fourteenth Amendments.4 The federal court declined to exercise supplemental jurisdiction over the state law wrongful death claim.5 The plaintiffs then filed a wrongful death action in state court against the same defendants.6 The trial court entered judgment in favor of the defendants, precluding what the court viewed as a re-litigation of the federal court's factual findings regarding excessive force. The court of appeal reversed, however, finding that the plaintiffs "could proceed on the theory that the officers failed to use reasonable care in creating, through their preshooting conduct, a situation in which it was reasonable for them to use deadly force."7 Upon review, the Supreme Court held that based on collateral estoppel, because the federal court jury found the use of force to have been reasonable, the wrongful death could not be based on the defendants' alleged tactical negligence.8 Therefore, the Court declined to address the defendants' argument that "they owed no duty of care regarding their preshooting conduct."9
In Hernandez, Justice Carlos Moreno issued a concurring opinion. Justice Moreno was of the belief that the plaintiffs did not meet "their burden of proving that it is reasonably possible that they [could] amend their complaint to allege a cause of action for preshooting negligence," and as such the Court "need say no more to resolve this case."10 The majority responded by stating that "we find that plaintiffs have adequately shown how they would amend their complaint to allege a preshooting negligence claim, and that we must determine whether any of the preshooting acts plaintiffs have identified can support negligence liability."11 Justice Moreno's statement would prove to be very significant.
In the case Hayes v. County of San Diego, sheriff's deputies arrived at a residence in response to a call from a neighbor, who said she had heard screaming.12 Upon their arrival, the deputies were informed by Shane Hayes's girlfriend that Hayes had tried to kill himself earlier in the evening.13 When the deputies entered the residence, Hayes came after them with a large knife.14 The deputies then shot and killed Hayes.15
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Hayes's daughter filed suit in federal court, asserting both Section 1983 claims (based on her father's Fourth Amendment rights and her own Fourteenth Amendment substantive due process right to familial association) and a pendent wrongful death claim. The district court granted summary judgment on both the federal and state law claims. With respect to the wrongful death claim, the plaintiff argued that the deputies were negligent "because they failed to gather all potentially available information about Hayes or request a PERT team before confronting him."16 Relying on Adams and Munoz, however, the district court held that the deputies owed no duty of care for their conduct prior to the use of force.17
On appeal, a Ninth Circuit panel unanimously affirmed the district court's ruling with respect to the Fourteenth Amendment claim, and remanded the case back to the trial court with respect to the plaintiff's standing to vicariously assert her father's Fourth Amendment rights.18 With respect to the negligent wrongful death claim, the panel majority noted that after the district court granted summary judgment, the Hernandez court had "indicated that law enforcement officers might be subject to negligence liability for certain preshooting conduct."19 While acknowledging that the Hernandez decision did not discuss the Adams and Munoz cases, the majority found that "the court's analysis of whether the officers' preshooting conduct independently constituted breach of a duty of care strongly indicates that California's highest court would not adopt a rule that officers owe no such duty."20
In dissent, Judge Johnnie Rawlinson disagreed with the panel majority's finding that the Hernandez decision supported a conclusion that the plaintiff "had a viable negligence claim."21 Judge Rawlinson noted that the Hernandez court was only asked to consider the following question:
When a federal court enters judgment in favor of the defendants in a civil rights claim brought under 42 United States Code section 1983 ..., in which the plaintiffs seek damages for police use of deadly and constitutionally excessive force in pursuing a suspect, and the court then dismisses a supplemental state law wrongful death claim arising out of the same incident, what, if any, preclusive effect does the judgment have in a subsequent state court wrongful death action?22
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Judge Rawlinson reasoned "that if the California Supreme Court was inclined to overrule the holdings of Munoz and Adams, it would have done so," and lamented that the majority had disregarded "the resulting continuing vitality of Munoz and Adams."23
After a request for re-hearing, the Ninth Circuit withdrew its decision and issued an order certifying a question for the California Supreme Court.24 The question, as stated, was "[w]hether 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."25 The Ninth Circuit found that "[t]here is disagreement within this court as to whether this discussion in Hernandez suggests that the California Supreme Court would not follow the holdings in Adams and Munoz," and as such "we believe the California Supreme Court should have the opportunity to speak for itself on the issue."26
After the certified question was submitted to the California Supreme Court in Hayes I, at least two federal district courts declined to apply the broad rule from Adams and Munoz. In the case J.P. ex rel. Balderas v. City of Porterville, police officers shot and killed Eusebio Prieto during a stand-off at a business location that took place after a high speed vehicle chase.27 Prieto's relatives filed suit in federal court including, among others, claims under Section 1983. The defendants made a motion for summary judgment, and the plaintiffs attempted to defeat the motion by citing the Ninth Circuit's initial Hayes opinion. In the district court's order, it was noted that after...
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