By Daniel P. Barer, Partner, Pollak, Vida & Barer

In Tabares v. City of Huntington Beach, published February 17, 2021, the 9th Circuit Court of Appeals reversed the district court’s grant of summary judgment on the plaintiff’s claims for negligent use of force under California law. The defendant police officer observed the plaintiff’s decedent acting erratically on the street. The officer parked, exited his vehicle, and asked the decedent to stop walking to talk. The decedent refused. The officer ordered the decedent to stop multiple times. The decedent eventually turned toward the officer while speaking loudly and aggressively. The decedent approached the officer with fists clenched. The officer backed up while instructing the decedent to stop. The officer tased the decedent, with no visible effect. The decedent punched the officer in the face. The two fought. The officer put the decedent in a headlock. The officer forced the decedent to the ground and struck him several times. The suspect grabbed at the officer’s belt. The officer shouted, “Let go of the gun.” The officer felt something being taken from his belt. It turned out to be the officer’s flashlight. The officer stood, drew his gun, and retreated about 15 feet from the decedent. He saw the decedent holding what the officer should have known was the flashlight. The officer shot the decedent six times, shouted, “Get down,” and shot him a seventh time. The decedent’s mother sued the officer and the city under 42 U.S.C. § 1983 for violation of the Fourth Amendment, and asserted California law claims for negligence, battery, and violation of the Bane Act. The district court granted summary judgment to the defendants on all claims. It ruled that it rejected the negligence claim for the same reasons that it rejected her federal claims: after multiple ignored warnings and sustained combat, the officer was objectively entitled to an inference that no amount of warnings or non-lethal means would safely subdue the decedent. The plaintiff appealed only her negligence claim.

The 9th Circuit ruled that the district court had improperly conflated the standards for use of force under the Fourth Amendment with the broader standards that apply under California negligence law. While federal law generally focuses on the tactical conduct at the time of shooting, under California law the officer’s pre-shooting decisions can render his behavior unreasonable under the totality of the circumstances, even if the use of force at the time of shooting might be reasonable in isolation. Under these standards, a reasonable jury could conclude that the officer should have suspected the decedent was mentally ill, and unreasonably failed to follow police protocol dealing with potentially mentally ill persons before using force. Further, under either California or federal standards, a reasonable jury could conclude that the officer’s use of deadly force was unreasonable because the suspect was 15 feet away, was not approaching, and was armed only with the officer’s flashlight when the officer shot him without warning. Further, that the officer yelled a warning before firing the final shot, then fired before the decedent had time to understand or comply with the command, could lead a reasonable jury to find the number of shots was unreasonable.

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