Chelsey Hayes v. County of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHELSEY HAYES, a minor by and No. 09-55644

through her guardian ad litem,

Plaintiff-Appellant, D.C. No.

3:07-cv-01738-

v. DMS-JMA

COUNTY OF SAN DIEGO, DBA San

Diego County Sheriff’s Department; ORDER

SUE GEER; MIKE KING, DISSOLVING

Defendants-Appellees. STAY and

OPINION

Appeal from the United States District Court

for the Southern District of California

Dana M. Sabraw, District Judge, Presiding

Argued and Submitted

June 9, 2010—Pasadena, California

Filed December 2, 2013

Before: Alfred T. Goodwin and Johnnie B. Rawlinson,

Circuit Judges, and Algenon L. Marbley, District Judge.*

*

The Honorable Algenon L. Marbley, District Judge for the U.S.

District Court for the Southern District of Ohio, sitting by designation.

2 HAYES V. COUNTY OF SAN DIEGO

Order;

Opinion by Judge Goodwin;

Partial Concurrence and Partial Dissent by Judge

Rawlinson

SUMMARY**

Civil Rights

The panel dissolved a previously entered stay and

affirmed in part and reversed in part the district court’s

summary judgment and remanded in an action brought under

42 U.S.C. § 1983 and state law in which plaintiff alleged

violations of her deceased father’s Fourth Amendment rights

and her own Fourteenth Amendment rights after Sheriff’s

deputies shot and killed the father during a response to a

domestic disturbance call.

The panel reversed the district court’s finding that

plaintiff had standing to assert survival claims related to her

father’s Fourth Amendment rights, noting that plaintiff failed

to allege that she was her father’s personal representative or

successor in interest. The panel remanded for further

proceedings on that issue, including whether plaintiff had

standing to assert a claim under Monell v. Department of

Social Services, 436 U.S. 658 (1978), against the County on

this basis.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

HAYES V. COUNTY OF SAN DIEGO 3

The panel affirmed the summary judgment in favor of

defendants on plaintiff’s substantive due process claim under

the Fourteenth Amendment. The panel held that in

determining whether the deputies’ actions shocked the

conscience, the district court correctly applied a purpose-to-

harm standard based on the deputies’ snap decision that the

father represented an immediate threat because he had a knife

in his hand and was walking forward. The panel held that

there was no evidence that the deputies fired their weapons

for any purpose other than self-defense. Because the panel

agreed that there was no violation of plaintiff’s rights under

the Fourteenth Amendment, it affirmed summary judgment

to the County as to any Monell claim made on this basis.

The panel reversed the summary judgment regarding

plaintiff’s negligent wrongful death claim and remanded for

further proceedings on this claim. The panel held that seen in

the light most favorable to plaintiff, reasonable jurors could

conclude that the deputies’ use of deadly force was not

objectively reasonable and that under California law, their

duty to act reasonably extended to their pre-shooting conduct.

Concurring in part and dissenting in part, Judge

Rawlinson stated that she agreed that plaintiff failed to

adequately support her substantive due process claim. Judge

Rawlinson disagreed with the balance of the majority opinion

because in her view the record did not raise a material issue

of fact regarding the amount of force used in this case. She

would therefore affirm in its entirety the district court’s entry

of summary judgment in favor of the defendants.

4 HAYES V. COUNTY OF SAN DIEGO

COUNSEL

Alvin M. Gomez, The Gomez Law Group, San Diego,

California, for Plaintiff-Appellant.

Morris G. Hill, Senior Deputy, and John J. Sansone, County

Counsel, County of San Diego, San Diego, California, for

Defendants-Appellees.

ORDER

The stay in this matter is DISSOLVED, and an opinion

is filed concurrently with this order.1

OPINION

GOODWIN, Circuit Judge:

On the night of September 17, 2006, San Diego County

Sheriff’s Deputies Mike King and Sue Geer shot and killed

1

In our original opinion, we affirmed the district court in part and

reversed in part, devoting a significant portion of our analysis to

Appellant’s negligent wrongful death claim. Hayes v. Cnty. of San Diego,

638 F.3d 688, 690, 694–701 (9th Cir. 2011). After the Appellees

requested that we certify an issue underlying that claim to the California

Supreme Court, we granted the request, withdrew our opinion, resubmitted

the case, and stayed proceedings pending that court’s final action. Hayes

v. Cnty. of San Diego, 658 F.3d 867, 868, 873 (9th Cir. 2011). Because

the California Supreme Court has now completed its final action in the

matter, Hayes v. Cnty. of San Diego, 305 P.3d 252 (Cal. 2013), we

dissolve the stay and enter this opinion.

HAYES V. COUNTY OF SAN DIEGO 5

Shane Hayes inside his home. After the incident, Hayes’s

minor daughter, Chelsey Hayes, sued the deputies and the

County of San Diego and asserted multiple federal claims, as

well as state claims for negligent wrongful death and

negligent hiring, training, and supervision. The district court

granted summary judgment to the deputies and the County

regarding all claims. We affirm in part, reverse in part, and

remand.

I. FACTUAL BACKGROUND

Deputy King arrived at Hayes’s residence at 9:12 p.m. in

response to a domestic disturbance call from a neighbor who

had heard screaming coming from the house. Geri Neill,

Hayes’s girlfriend and the owner of the house, spoke with

Deputy King at the front door. During a three-minute

conversation, Neill advised Deputy King that she and Hayes

had been arguing about his attempt that night to commit

suicide by inhaling exhaust fumes from his car. She told

Deputy King that there had not been a physical altercation

between them, and she was instead concerned about Hayes

harming himself, indicating that he had attempted to do so on

prior occasions. Deputy King did not ask Neill about the

manner of Hayes’s prior suicide attempts and was unaware

that he had previously stabbed himself with a knife.

Although Neill advised Deputy King that there were no guns

in the house, she made no indication that Hayes might be

armed with a knife.

At 9:16 p.m., Deputy Geer arrived at the scene, and

Deputy King advised her that there was a subject inside the

house who was potentially suicidal. Based on the concern

that Hayes might harm himself, the deputies decided to enter

the house to check on Hayes’s welfare, a process Deputy

6 HAYES V. COUNTY OF SAN DIEGO

King described as seeing whether Hayes could “physically or

mentally care” for himself. While Neill later stated that

Hayes had been drinking heavily that night, Deputy King had

not asked Neill whether Hayes was under the influence of

drugs or alcohol. Although the deputies had been sent a

notification that Hayes was intoxicated, neither deputy was

aware of this information before entering the house.

Additionally, the deputies had not checked whether there had

been previous calls to the residence, and they were unaware

that Hayes had been taken into protective custody four

months earlier in connection with his suicide attempt

involving a knife.

Upon entry, both deputies had their guns holstered.

Deputy King was also carrying a Taser. While moving in the

dimly lit house, Deputy King advanced ahead of Deputy Geer

and was using his sixteen-inch flashlight, which he had been

trained to use as an impact weapon.

Once in the living room, Deputy King saw Hayes in an

adjacent kitchen area, approximately eight feet away from

him. Because Hayes’s right hand was behind his back when

Deputy King first saw him, Deputy King testified that he

ordered Hayes to “show me his hands.” While taking one to

two steps towards Deputy King, Hayes raised both his hands

to approximately shoulder level, revealing a large knife

pointed tip down in his right hand. Believing that Hayes

represented a threat to his safety, Deputy King immediately

drew his gun and fired two shots at Hayes, striking him while

he stood roughly six to eight feet away. Deputy Geer

simultaneously pulled her gun as well, firing two additional

rounds at Hayes.

HAYES V. COUNTY OF SAN DIEGO 7

Deputy King testified that only four seconds elapsed

between the time he ordered Hayes to show his hands and the

time the first shot was fired. When asked why he believed

Hayes was going to continue at him with the knife, Deputy

King testified: “Because he wasn’t stopping.” Neither deputy

had ordered Hayes to stop. While stating that such a

command would have only taken “a split second,” Deputy

King testified that “I didn’t believe I had any time.”

Neill witnessed the shooting from behind Deputy Geer

and testified that Hayes was walking towards the deputies

with the knife raised at the time the shots were fired. She

stated, however, that Hayes was not “charging” at the officers

and had a “clueless” expression on his face at the time, which

she described as “like nothing’s working upstairs.” Neill

testified that just before the shooting, Hayes had said to the

officers: “You want to take me to jail or you want to take me

to prison, go ahead.”

II. DISCUSSION

Hayes’s minor daughter, Chelsey Hayes, filed suit against

the deputies and the County of San Diego, alleging claims

under 42 U.S.C. § 1983 for alleged violations of her deceased

father’s Fourth Amendment rights and her own Fourteenth

Amendment rights. The complaint also included state law

claims for negligent wrongful death and negligent hiring,

training, and supervision by the County. While finding

Chelsey Hayes had standing to assert survival claims, the

district court nonetheless granted defendants summary

judgment on all her causes of action.

Chelsey Hayes appeals the district court’s grant of

summary judgment, except for her claim of negligent hiring,

8 HAYES V. COUNTY OF SAN DIEGO

training and supervision by the County.2 In responding,

Appellees contest the district court’s finding that Chelsey

Hayes has standing to assert survival claims based on

violations of her father’s constitutional rights.

A. STANDARD OF REVIEW

We review issues of standing de novo. Porter v. Jones,

319 F.3d 483, 489 (9th Cir. 2003). We review the district

court’s interpretation of state law and its grant of summary

judgment de novo. In re W. States Wholesale Natural Gas

Antitrust Litig., 715 F.3d 716, 728, 745–46 (9th Cir. 2013).

“Summary judgment is inappropriate if reasonable jurors,

drawing all inferences in favor of the nonmoving party, could

return a verdict in the nonmoving party's favor.” Diaz v.

Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir.

2008).

B. APPLICATION

1. Standing to Assert Survival Claims

“In § 1983 actions, . . . the survivors of an individual

killed as a result of an officer’s excessive use of force may

assert a Fourth Amendment claim on that individual’s behalf

if the relevant state’s law authorizes a survival action. The

party seeking to bring a survival action bears the burden of

demonstrating that a particular state’s law authorizes a

2

Appellant’s opening and reply briefs fail to address the district court’s

dismissal of her negligent hiring, training and supervision claim, and we

conclude that any appeal of that dismissal is waived. See

Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996) (issues

not specifically raised and argued in a party’s opening brief are waived).

HAYES V. COUNTY OF SAN DIEGO 9

survival action and that the plaintiff meets that state’s

requirements for bringing a survival action.” Moreland v.

Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir.

1998) (internal citation omitted).

In finding that Chelsey Hayes met California’s statutory

requirements to bring a survival action, the district court

relied upon California Code of Civil Procedure § 377.60.

The district court erred in doing so because section 377.60

relates to wrongful death actions that are based on personal

injuries resulting from the death of another, not survival

actions that are based on injuries incurred by the decedent.

See CAL. CIV. PROC. CODE § 377.60 (“A cause of action for

the death of a person caused by the wrongful act or neglect of

another may be asserted by any of the following persons

. . . .”); Schwarder v. United States, 974 F.2d 1118, 1123 n.3

(9th Cir. 1992) (“[T]he cause of action granted by Section

377 to the heirs and personal representatives of a decedent is

not derivative in character or a continuation or revival of a

cause of action existing in the decedent before his death, but

is an original and distinct cause of action granted to the heirs

and personal representatives of the decedent to recover

damages sustained by them by reason of the wrongful death

of the decedent.”) (quoting Van Sickel v. United States,

285 F.2d 87, 90 (9th Cir. 1960)); see also Davis v. Bender

Shipbuilding & Repair Co., 27 F.3d 426, 429 (9th Cir. 1994)

(“In a survival action, a decedent’s estate may recover

damages on behalf of the decedent for injuries that the

decedent has sustained. In a wrongful death action, by

comparison, the decedent’s dependents may only pursue

claims for personal injuries they have suffered as a result of

a wrongful death.”).

10 HAYES V. COUNTY OF SAN DIEGO

California’s statutory requirements for standing to bring

a survival action are stated under California Code of Civil

Procedure § 377.30: “A cause of action that survives the

death of the person entitled to commence an action or

proceeding passes to the decedent’s successor in interest . . . ,

and an action may be commenced by the decedent’s personal

representative or, if none, by the decedent’s successor in

interest.” See also Tatum v. City & Cnty. of San Francisco,

441 F.3d 1090, 1093 n.2 (9th Cir. 2006) (“Where there is no

personal representative for the estate, the decedent’s

‘successor in interest’ may prosecute the survival action if the

person purporting to act as successor in interest satisfies the

requirements of California law . . . .”) (citing CAL. CIV. PROC.

CODE §§ 377.30, 377.32). While claiming she is the

decedent’s “sole surviving heir,” Appellant fails to allege that

she is her father’s personal representative or successor in

interest. Indeed, Appellant argues only that standing is

appropriate under section 377.60, not section 377.30. There

is no indication whether Appellant has filed the affidavit

necessary under California law to commence a survival action

as a decedent’s successor in interest, see CAL. CIV. PROC.

CODE § 377.32, or whether survival claims may now be time-

barred if Appellant has failed to do so.

Because it is unclear on the present record whether

Appellant has standing to assert survival claims based on her

father’s constitutional rights, we do not address the district

court’s further finding of qualified immunity in relation to the

alleged Fourth A mendment violations. Accordingly, we

remand this issue to the district court for a decision whether

Chelsey Hayes has standing to assert survival claims based on

alleged violations of her father’s rights under the Fourth

Amendment.

HAYES V. COUNTY OF SAN DIEGO 11

2. Alleged Fourteenth Amendment Violations

This Circuit has recognized that a child has a

constitutionally protected liberty interest under the Fourteenth

Amendment in the “companionship and society” of her

father. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th

Cir. 1991); Moreland, 159 F.3d at 371. “Official conduct that

‘shocks the conscience’ in depriving [a child] of that interest

is cognizable as a violation of due process.” Wilkinson v.

Torres, 610 F.3d 546, 554 (9th Cir. 2010). In determining

whether excessive force shocks the conscience, the court

must first ask “whether the circumstances are such that actual

deliberation [by the officer] is practical.” Porter v. Osborn,

546 F.3d 1131, 1137 (9th Cir. 2008) (quoting Moreland,

159 F.3d at 372 (internal quotation marks omitted)). Where

actual deliberation is practical, then an officer’s ‘deliberate

indifference’ may suffice to shock the conscience. On the

other hand, where a law enforcement officer makes a snap

judgment because of an escalating situation, his conduct may

be found to shock the conscience only if he acts with a

purpose to harm unrelated to legitimate law enforcement

objectives. Wilkinson, 610 F.3d at 554.

Here, the district court correctly applied the purpose-to-

harm standard based on the deputies’ snap decision that

Hayes represented an immediate threat. Neill had advised

Deputy King that there were no guns in the house, and the

deputies entered the residence with their guns holstered,

apparently not expecting a violent confrontation with Hayes.3

3

We note that Appellant makes no argument that this warrantless entry

itself violated Hayes’s Fourth Amendment rights. Indeed, such an

argument would likely be unavailing in light of the emergency exception

to the warrant requirement. See United States v. Russell, 436 F.3d 1086,

12 HAYES V. COUNTY OF SAN DIEGO

After Deputy King ordered Hayes to show his hands, Hayes

raised both his hands to approximately shoulder level,

revealing a large knife pointed tip down in his right hand.

Believing that Hayes represented a threat, both deputies

immediately drew their guns and fired at Hayes.

The decision to use deadly force against Hayes was a snap

judgment based on the unexpected appearance of a knife in

his hand. Deputy King testified that only four seconds

elapsed between the time he ordered Hayes to show his hands

and the time the first shot was fired, stating that he did not

feel there was time to give Hayes a warning before firing.

Appellant argues that the deputies could have potentially

avoided the incident by obtaining more information about

Hayes or requesting a psychiatric emergency response team

(“PERT”) before entering the house, but that option expired

when the deputies entered the house. The decision to employ

deadly force in reaction to seeing the knife was sudden and

did not include deliberation. Cf. Wilkinson, 610 F.3d at 554

(finding purpose-to-harm standard appropriate where

“[w]ithin a matter of seconds, the situation evolved from a car

chase to a situation involving an accelerating vehicle in

dangerously close proximity to officers on foot”); Porter,

546 F.3d at 1139 (finding actual deliberation was not

practical where a five-minute altercation between the officers

and victim evolved quickly and forced the officers to make

“repeated split-second decisions”) (internal quotation marks

omitted). Accordingly, the purpose-to-harm standard is

appropriate in this case.

1094 (9th Cir. 2006) (“At issue in this case is the emergency exception to

the warrant requirement, which permits a warrantless search when officers

‘reasonably believe that a person within is in need of immediate aid.’”)

(quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978)).

HAYES V. COUNTY OF SAN DIEGO 13

Appellant makes no claim that the deputies acted with a

purpose to harm unrelated to the legitimate law-enforcement

objective of defending themselves, arguing only that the

deliberate-indifference standard should have been applied.

Indeed, there is no evidence that the deputies fired their

weapons for any purpose other than self-defense.

Accordingly, Appellant failed to support her substantive due

process claim. See Wilkinson, 610 F.3d at 554–55. We

therefore affirm the summary judgment regarding the § 1983

claim based on a violation of Appellant’s rights under the

Fourteenth Amendment.

3. Monell Claims of Municipal Liability under § 1983

Finding no violation of either Hayes’s or Appellant’s

constitutional rights, the district court granted the County

summary judgment on all claims of municipal liability under

Monell v. Department of Social Services, 436 U.S. 658

(1978). Because we agree that there was no violation of

Appellant’s rights under the Fourteenth Amendment, we

affirm summary judgment to the County as to any Monell

claim made on this basis. See Van Ort v. Estate of Stanewich,

92 F.3d 831, 835–36 (9th Cir. 1996) (noting that a

constitutional violation is required to support Monell

liability).

As noted, however, we have declined to address the

district court’s decision regarding alleged violations of

Hayes’s Fourth Amendment rights because it is unclear that

Appellant has standing to assert such survival claims.

Accordingly, we remand Appellant’s Monell claim based on

alleged violations of her father’s constitutional rights,

permitting the district court to decide whether Chelsey Hayes

14 HAYES V. COUNTY OF SAN DIEGO

has standing to assert survival claims based on alleged

violations of her father’s rights under the Fourth Amendment.

4. Negligent Wrongful Death

We then turn to Appellant’s negligent wrongful death

claim. To support a claim of negligent wrongful death

against law enforcement officers, a plaintiff must establish

the standard elements of negligence: defendants owed a duty

of care; defendants breached their duty; and defendants’

breach caused plaintiff’s injury. See Wright v. City of Los

Angeles, 219 Cal. App. 3d 318, 344 (1990). The district court

considered these elements and provided two reasons for

rejecting Plaintiff’s negligent wrongful death claim.

First, the court held that the deputies owed a duty of

reasonable care in deciding to use deadly force, but concluded

that their use of force was objectively reasonable and

therefore not negligent as a matter of law.

Second, the court addressed Appellant’s contention that:

(1) the deputies also owed a duty of reasonable care with

respect to their conduct and decisions before the shooting;

and (2) they breached their duty by failing to gather all

potentially available information about Hayes or to request

PERT assistance before confronting him. The district court

explained that the California Supreme Court had not clearly

addressed a peace officer’s duty of reasonable care in pre-

shooting conduct; correctly proceeded to consider the then-

governing intermediate appellate authorities, see Katz v.

Children’s Hosp., 28 F.3d 1520, 1528–29 (9th Cir. 1994);

Estrella v. Brandt, 682 F.2d 814, 817 (9th Cir. 1982); and

concluded that the deputies owed no duty of reasonable care

regarding their pre-shooting conduct.

HAYES V. COUNTY OF SAN DIEGO 15

Considering the evidence in the light most favorable to

Appellant, we disagree with the district court’s first

conclusion. And, with the benefit of the California Supreme

Court’s response to our certified question, we must reject the

district court’s second conclusion. See Hayes v. Cnty. of San

Diego (Hayes I), 658 F.3d 867, 868 (9th Cir. 2011)

(certifying question to California Supreme Court and

requesting decision); Hayes v. Cnty. of San Diego (Hayes II),

305 P.3d 252 (Cal. 2013) (responding to request); Hewitt v.

Joyner, 940 F.2d 1561, 1565 (9th Cir. 1991) (when

interpreting state law, a federal court is bound by the decision

of the state’s highest court). We therefore reverse and

remand for further proceedings regarding Appellant’s

negligent wrongful death claim.

A. Viewing the evidence in the light most

favorable to Appellant, reasonable jurors could

conclude that the deputies’ use of deadly force

was not objectively reasonable.

“While breach of duty and proximate cause normally

present factual questions, the existence of a legal duty in a

given factual situation is a question of law for the courts to

determine.” Jackson v. Ryder Truck Rental, Inc., 16 Cal. App.

4th 1830, 1838 (1993) (quoting Andrews v. Wells, 204 Cal.

App. 3d 533, 538 (1988)) (internal quotation marks omitted).

The California Supreme Court has held that “an officer’s

lack of due care can give rise to negligence liability for the

intentional shooting death of a suspect,” and that “police

officers have a duty to use reasonable care in employing

deadly force.” Munoz v. Olin, 24 Cal.3d 629, 634 (1979)

(citing Grudt v. City of Los Angeles, 2 Cal. 3d 575, 586

(1970)); Munoz v. City of Union City, 120 Cal. App. 4th

16 HAYES V. COUNTY OF SAN DIEGO

1077, 1099–1100 (2004) (citing Grudt, 2 Cal.3d 575 and

Munoz, 24 Cal.3d 629). Claims of excessive force under

California law are analyzed under the same standard of

objective reasonableness used in Fourth Amendment claims.

See In re Joseph F., 85 Cal. App. 4th 975, 989 (2000) (citing

Martinez v. Cnty. of Los Angeles, 47 Cal. App. 4th 334, 343

(1996)); see also Edson v. City of Anaheim, 63 Cal. App. 4th

1269, 1274 (1998) (noting that 42 U.S.C. § 1983 is “the

federal counterpart of state battery or wrongful death

actions”); Brown v. Ransweiler, 171 Cal. App. 4th 516, 527

n.11 (2009) (“Because federal civil rights claims of excessive

use of force are the federal counterpart to state battery and

wrongful death claims, federal cases are instructive in this

area.”).

“The ‘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, 490 U.S. 386, 396 (1989). To do so, a

court must pay “careful attention to the facts and

circumstances of each particular case, including [1] the

severity of the crime at issue, [2] whether the suspect poses

an immediate threat to the safety of the officers or others, and

[3] whether he is actively resisting arrest or attempting to

evade arrest by flight.” Id. We also consider, under the

totality of the circumstances, the “quantum of force” used,

Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir.

2007), the availability of less severe alternatives, id. at 1054,

and the suspect’s mental and emotional state, see Deorle v.

Rutherford, 272 F.3d 1272, 1282 (9th Cir. 2001). All

determinations of unreasonable force, however, “must

embody allowance for the fact that police officers are often

forced to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving—about the

HAYES V. COUNTY OF SAN DIEGO 17

amount of force that is necessary in a particular situation.”

Graham, 490 U.S. at 396–97.

Although we view the evidence in the light most

favorable to Appellant in reviewing summary judgment,

Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998), we can

only consider the circumstances of which Deputies King and

Geer were aware when they employed deadly force. See

Graham, 490 U.S. at 396; Glenn v. Washington Cnty.,

673 F.3d 864, 873 n.8 (9th Cir. 2011) (Graham teaches that

“[w]e cannot consider evidence of which the officers were

unaware”). Accordingly, when analyzing the objective

reasonableness of the officers’ conduct under Graham, we

cannot consider the fact that Hayes was intoxicated or that he

had previously used a knife in harming himself.

In considering the first and third factors under Graham,

it is undisputed that Hayes had committed no crime, and there

is no evidence suggesting that Hayes was “actively resisting

arrest or attempting to evade arrest.” Graham, 490 U.S. at

396. Taking the evidence in the light most favorable to

Appellant, Hayes appears to have been complying with

Deputy King’s order to show his hands when Hayes raised his

hands and revealed the knife. His statement that the deputies

could take him to jail further suggests his compliance at the

time. Although Hayes was walking towards the deputies, he

was not charging them, and had not been ordered to stop. He

had committed no crime and had followed all orders from the

deputies at the time he was shot.4

4

In Tennessee v. Garner, 471 U.S. 1, 11–12 (1985), the Supreme Court

stated a probable cause standard for determining whether a fleeing suspect

poses a threat of serious physical harm to officers or others. Although

Hayes seemed to believe he was going to be arrested, he was not

18 HAYES V. COUNTY OF SAN DIEGO

The central issue is whether it was objectively reasonable

under the circumstances for the deputies to believe that Hayes

posed an immediate threat to their safety, warranting the

immediate use of deadly force, rather than less severe

alternatives—such as an order to stop, an order to drop the

knife, or a warning that deadly force would be used if Hayes

came any closer to the deputies.5 See Smith v. City of Hemet,

394 F.3d 689, 702 (9th Cir. 2005) (en banc) (noting that the

second factor under Graham is the “most important”)

(quoting Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994)).

Based on the undisputed fact that Hayes was moving toward

Deputy King with the knife raised, the district court found as

a matter of law that the deputies’ use of deadly force was

objectively reasonable due to the threat to the officers’ safety.

Considering all of the evidence in the light most favorable

to the Appellant, we cannot agree. “[T]he mere fact that a

suspect possesses a weapon does not justify deadly force.”

Haugen v. Brosseau, 351 F.3d 372, 381 (9th Cir. 2003), rev’d

on other grounds, 543 U.S. 194 (2004) (citing Harris v.

Roderick, 126 F.3d 1189, 1202 (9th Cir. 1997) (holding, in

the Ruby Ridge civil case, that the FBI’s directive to kill any

armed adult male was constitutionally unreasonable even

though a United States Marshal had already been shot and

killed by one of the males)); Glenn, 673 F.3d at 872

(suspect’s mere “possession of a knife” is “not dispositive”

suspected of a crime by the deputies and was not apparently attempting to

evade them. Accordingly, this standard would not apply here.

5

While Deputy King was carrying a Taser, he testified that he believed

it would take between ten to fifteen seconds to unholster and use the

device, indicating that the Taser was not a viable alternative under the

circumstances.

HAYES V. COUNTY OF SAN DIEGO 19

on immediate-threat issue); Curnow, 952 F.2d at 324–25

(holding that deadly force was unreasonable where the

suspect possessed a gun but was not pointing it at the officers

and was not facing the officers when they shot).

Accordingly, Hayes’s unexpected possession of the knife

alone—particularly when he had committed no crime and was

confronted inside his own home—was not sufficient reason

for the officers to employ deadly force.

On the other hand, threatening an officer with a weapon

does justify the use of deadly force. See, e.g., Smith,

394 F.3d at 704 (recognizing that “where a suspect threatens

an officer with a weapon such as a gun or a knife, the officer

is justified in using deadly force”); Reynolds v. Cnty. of San

Diego, 84 F.3d 1162, 1168 (9th Cir. 1996) (holding deadly

force reasonable where suspect, who was behaving

erratically, swung a knife at an officer), overruled on other

grounds by Acri v. Varian Assocs., Inc., 114 F.3d 999 (9th

Cir. 1997).6 There is no clear evidence, however, that Hayes

6

In suggesting that Deputy King had “probable cause to believe that his

life was in danger,” the partial dissent mistakenly equates the facts found

in Reynolds with those here, ignoring the significant differences between

the two situations. In Reynolds, a man was “behaving in a strange manner”

outside a gas station, and wielding a knife. 84 F.3d at 1164. An officer

ordered the man to drop the knife multiple times, but when the officer

attempted to restrain him, the man made a “sudden” swing at the officer

with the knife. Id. at 1164–65. This court found the suspect’s actions

constituted a direct threat to the officer’s life, justifying the officer’s use

of deadly force. Id. at 1170. Here, the evidence suggesting that Hayes

presented an immediate threat to officer safety is unclear, raising a greater

question regarding the reasonableness of the officers’ actions, as

compared to the officer in Reynolds. On this record, Hayes was standing

in his own kitchen, eight feet away from Deputy King; Hayes was not

suspected of any crime; he was not ordered to drop the knife; he did not

swing the knife at Deputy King; and he followed all of the deputies’

20 HAYES V. COUNTY OF SAN DIEGO

was threatening the officers with the knife here. Before they

entered the house, the deputies were told that Hayes had

threatened to harm himself; they were not told that he had

threatened to harm others. Nor did the deputies witness

Hayes acting erratically with the knife. Cf. Reynolds, 84 F.3d

at 1168 (finding that it was reasonable for an officer to

attempt to restrain a suspect where the suspect possessed a

knife and was acting erratically because the suspect was

perceived as a threat by others in the area).

Deputy King indicated that it was Hayes’s movement

towards him that caused him to believe Hayes was an

immediate threat. “[A] simple statement by an officer that he

fears for his safety or the safety of others is not enough

[however]; there must be objective factors to justify such a

concern.” Deorle, 272 F.3d at 1281. Neill stated that Hayes

was not charging Deputy King and described Hayes’s

expression as “clueless” when walking towards the deputies.

As noted, Hayes had not been told to stop, nor had he been

given any indication that his actions were perceived as a

threat. Further, Hayes was still six to eight feet away from

Deputy King at the time he was shot. Accordingly, the

orders before the shooting. We agree with the partial dissent that “the

events in this case unfolded rapidly within a dimly lit, confined space.”

But the lack of clarity in these circumstances does not cause us to simply

adopt the officers’ explanation of their actions. To the contrary, a court

must determine on summary judgment whether there is any issue of

material fact that would contradict an otherwise reasonable justification

for the use of force. In finding that there remain genuine issues of material

fact regarding whether Hayes represented an immediate threat to officer

safety, we do not merely engage in a 20/20 hindsight analysis, as the

partial dissent suggests. Instead, we acknowledge the court’s limited role

at the summary judgment stage in determining objective reasonableness

under Graham.

HAYES V. COUNTY OF SAN DIEGO 21

present evidence does not clearly establish that Hayes was

threatening the deputies with the knife.

Finally, it is significant that Hayes was given no warning

before the deputies shot him. As noted by the court in

Deorle:

The absence of a warning or an order to halt is

also a factor that influences our decision.

Shooting a person who is making a

disturbance because he walks in the direction

of an officer at a steady gait with a can or

bottle in his hand is clearly not objectively

reasonable. Certainly it is not objectively

reasonable to do so when the officer neither

orders the individual to stop nor to drop the

can or bottle, and does not even warn him that

he will be fired upon if he fails to halt.

Appropriate warnings comport with actual

police practice. . . . We do not hold, however,

that warnings are required whenever less than

deadly force is employed. Rather, we simply

determine that such warnings should be given,

when feasible, if the use of force may result in

serious injury, and that the giving of a

warning or the failure to do so is a factor to be

considered in applying the Graham balancing

test.

Id. at 1283–84; see also Nelson v. City of Davis, 685 F.3d

867, 882 (9th Cir. 2012). The San Diego County Sheriff’s

Department Guidelines regarding use of force reflect the

importance of warning a suspect before using deadly force:

“In situations where any force used is capable of causing

22 HAYES V. COUNTY OF SAN DIEGO

serious injury or death, there is a requirement that, whenever

feasible, the deputy must first warn the suspect that force will

be used if there is not compliance.” While estimating that

such a warning would have taken only a “split second,”

Deputy King testified that he did not feel he had time to issue

such a warning. According to Deputy King’s own testimony,

however, Hayes was still at least six feet away from him at

the time he was shot. It is not clear that a warning in this

situation was unfeasible.

The California Supreme Court has held that it is error for

a trial court to remove the issue of negligence from a jury

where the evidence most favorable to the plaintiff could

support a view that the force used was unreasonable. See

Grudt, 2 Cal.3d at 586–87 (holding the trial court erred in

removing the issue of negligence from the jury where the

evidence most favorable to the plaintiff could have supported

a view that Grudt, driving in a high crime area late at night

and hailed to stop by men in plain clothes, thought he was

going to be robbed, tried to elude the robbers, and was then

shot by the plainclothes officers when his car stopped at an

intersection). Seen in the light most favorable to Appellant,

Hayes was complying with Deputy King’s order when he

raised the knife and posed no clear threat at the time he was

shot without warning. Accordingly, we reverse the district

court’s first conclusion: that the deputies’ use of force was

objectively reasonable as a matter of law.7

7

We note that the district court did not address whether the deputies or

the County would be entitled to statutory immunity under California law,

and we decline to address this issue in the first instance here.

HAYES V. COUNTY OF SAN DIEGO 23

B. Under California law, the deputies’ duty to act

reasonably when using deadly force extends to

their pre-shooting conduct.

We also reverse the district court’s second conclusion:

that the deputies owed no duty of reasonable care with regard

to their pre-shooting conduct.8

The California Supreme Court has responded to our

certification order and clarified California’s negligence

doctrine in cases where, as here, a plaintiff attacks peace

officers’ “tactical conduct and decisions leading up to the use

of deadly force.” Hayes II, 305 P.3d at 253. According to

Hayes II, the district court’s conclusion below “overlooks the

long-established principle of California negligence law that

the reasonableness of a peace officer’s conduct must be

8

The partial dissent claims that the district court’s opinion “touched all

the bases laid out by the California Supreme Court” in Hayes II. We

disagree.

The district court’s opinion stated that “[o]n the facts of this case,

Deputies King and Geer owed no duty to Mr. Hayes regarding their pre-

shooting conduct.” District Court Opinion at 13 (emphasis added). Hayes

II is to the contrary. See 305 P.3d at 261 (Plaintiff’s “fact-based theory”

that preshooting conduct “caused [Hayes] to seek his own death at [the

deputies’] hands” falls “within the totality of circumstances” underlying

the “peace officers[’] . . . duty to act reasonably when using deadly

force.”).

Furthermore, Hayes II expressly recognized that the California

Supreme Court’s holding was inconsistent with the district court’s

opinion. Id. at 257 (“[T]he federal district court ruled . . . that the sheriff’s

deputies owed plaintiff no duty of care with regard to their preshooting

conduct . . . . 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.”).

24 HAYES V. COUNTY OF SAN DIEGO

determined in light of the totality of circumstances.” Id. at

257. There is “no sound reason to divide plaintiff’s cause of

action . . . into a series of decisional moments . . . and then to

permit plaintiff to litigate each decision in isolation, when

each is part of a continuum of circumstances surrounding a

single use of deadly force.” Id. at 262, 256. Instead, under

Grudt, an officer’s preshooting conduct is properly “included

in the totality of circumstances surrounding [his] use of

deadly force, and therefore the officer’s duty to act

reasonably when using deadly force extends to preshooting

conduct.” Id. at 257 (emphasis added).9

Accordingly, while we acknowledge that the district

court’s summary judgment ruling “was undertaken at a time

when the law . . . was unclear” and that the district court

could not be “clairvoyant or prescient,” we also recognize

that after Hayes II, the law “is no longer uncertain.” Ewing

v. Williams, 596 F.2d 391, 397 (9th Cir. 1979). Consistent

with our obligation to follow the authority of California’s

highest court, see Joyner, 940 F.2d at 1565, we conclude that

the deputies’ duty of reasonable care extended to their

conduct before the shooting, and reverse the district court’s

conclusion to the contrary.

III. CONCLUSION

The circumstances of this case can be viewed in multiple

ways: as “suicide by cop,” as officers suddenly threatened

with a deadly weapon, or as a depressed man simply holding

9

The court also emphasized that the “reasonableness of the deputies’

preshooting conduct should not be considered in isolation,” but as part of

the totality of the circumstances surrounding the fatal shooting of Hayes.

Hayes II, 305 P.3d at 261–62.

HAYES V. COUNTY OF SAN DIEGO 25

a knife when confronted by law enforcement. As with most

excessive force claims, the correct determination of the

circumstances here will require a careful balancing of the

evidence and the inferences that can be made therefrom. For

just this reason, this court has stated on many occasions that

summary judgment in excessive force cases should be granted

sparingly, because the reasonableness of force used is

ordinarily a question of fact for the jury. See, e.g., Smith,

394 F.3d at 701; Santos v. Gates, 287 F.3d 846, 853 (9th Cir.

2002); Liston v. Cnty. of Riverside, 120 F.3d 965, 976 n.10

(9th Cir. 1997) (citing multiple cases).

Consistent with that teaching, we reverse the summary

judgment regarding Appellant’s negligent wrongful death

claim and remand for further proceedings on that claim. We

also reverse the district court’s finding that Appellant has

standing to assert survival claims related to her father’s

Fourth Amendment rights and remand for further proceedings

on the issue, including whether Appellant has standing to

assert a Monell claim against the County on this basis.

We affirm the summary judgment as to Appellant’s

§ 1983 claim based on a violation of her rights under the

Fourteenth Amendment, as well as the Monell claim stated

against the County on the same basis.

AFFIRMED in part, REVERSED in part, and

REMANDED. No party to recover costs on this appeal.

26 HAYES V. COUNTY OF SAN DIEGO

RAWLINSON, Circuit Judge, concurring in part and

dissenting in part:

I agree with the majority that the Plaintiff failed to

adequately support her substantive due process claim. I also

agree that the district court properly granted summary

judgment in favor of the Defendants. I therefore join Section

II.B.2. of the majority opinion. However, I disagree with the

balance of the majority opinion because the record does not

raise a material issue of fact regarding the amount of force

used in this case, even after applying the decision of the

California Supreme Court. See Hayes v. County of San

Diego, 305 P.3d 252 (Cal. 2013).

Before resolving the legal issues in this case, it is

appropriate to focus on the facts and the circumstances the

officers encountered upon arrival at the scene. The impetus

for the officers’ response was a call from a neighbor who

reported hearing screaming from the house where the

decedent Shane Hayes resided. Hayes’ girlfriend advised

Deputy King that she and Hayes had been arguing. When the

two officers entered the residence, it was so dimly lit that

Deputy King was forced to use his flashlight. Hayes was

located approximately eight feet from Deputy King. When

Deputy King ordered Hayes to show his hands, Hayes

revealed a large knife in his raised right hand, with the tip

pointed downward. At the same time, Hayes was steadily

advancing toward Deputy King. Only four seconds elapsed

between the time Deputy King ordered Hayes to show his

hands and the shooting, with no cessation of Hayes’ forward

advance. Indeed, it is undisputed that Hayes continued to

advance toward Deputy King with the knife raised. Hayes’

girlfriend described Hayes as having a “clueless” expression

on his face as he continued to advance. Deputy King testified

HAYES V. COUNTY OF SAN DIEGO 27

that he shot Hayes “[b]ecause [Hayes] wasn’t stopping.” At

the hearing on the summary judgment motion filed by the

County, the Plaintiff did not challenge the officers’ testimony

regarding the sequence of events. Her only challenge was to

the location of the knife once Hayes fell to the floor upon

being shot, which challenge did not raise a material issue of

fact.

This case is similar to Reynolds v. County of San Diego,

84 F.3d 1162, 1170 (9th Cir. 1996), overruled on a different

ground in Acri v. Varian Associates, 114 F.3d 999, 1000 (9th

Cir. 1997). As in this case, the deceased in Reynolds “was

behaving in a strange manner and wielded a knife . . .” Id. In

Reynolds, we reiterated the United States Supreme Court’s

holding that the use of deadly force by a police officer is

reasonable so long as the officer “has probable cause to

believe that the [person against whom the force is used] poses

a significant threat of death or serious physical injury to the

officer . . .” Id. at 1167. We also noted the Supreme Court’s

caution that in making that determination, we must be ever

mindful that what we view at our leisure with the perspective

of 20–20 hindsight often occurs in rapid sequence. See id.

As commonly happens in deadly force cases, the events

in this case unfolded rapidly within a dimly lit, confined

space. By Hayes’ girlfriend’s account, Hayes kept coming

toward Deputy King in a small space with an expression on

his face “like nothing’s working upstairs.” Faced with a

steadily advancing Hayes wielding a large knife, the officer

had probable cause to believe that his life was in danger. See

Reynolds, 84 F.3d at 1167. As our precedent makes clear, an

officer need not wait for the assailant to strike a blow before

acting to ensure his safety and the safety of others. See Smith

v. City of Hemet, 394 F.3d 689, 704 (9th Cir. 2005) (en banc)

28 HAYES V. COUNTY OF SAN DIEGO

(“[W]here a suspect threatens an officer with a weapon such

as a gun or a knife, the officer is justified in using deadly

force.”) (citations omitted); see also Blanford v. Sacramento

County, 406 F.3d 1110, 1115–16 (9th Cir. 2005).

The majority opinion remands the case to the district

court for a determination of whether the Plaintiff may

maintain a survivorship action. However, in my view,

regardless of whether Plaintiff may maintain an action, no

excessive force was used by Deputy King. Rather than

remanding the case to the district court, I would affirm the

district court’s ruling that no excessive force was used.

The opinion of the California Supreme Court does not

alter my view of this case because that court simply reiterated

our obligation to resolve the excessive force claim by

reviewing the totality of the circumstances, rather than by

dissecting the analysis into separate considerations of pre-

shooting conduct and shooting conduct. See Hayes, 305 P.3d

at 256–57 (explaining that the issue certified erroneously

“focuse[d] in isolation on events that preceded the shooting”

rather than considering those events as part of the “totality of

circumstances”). “[T]he pre-shooting conduct is only

relevant here to the extent it shows, as part of the totality of

circumstances, that the shooting itself was negligent. . . .” Id.

at 257. The California Supreme Court expressly disavowed

any intent to resolve the issue of liability “on the facts

presented.” Id. at 254. Rather, it left that matter to “the

federal courts [to resolve].” Id. However, the California

Supreme Court expressly acknowledged that the “nation’s

high court has observed [that] the 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.” Id. at 258 (quoting Graham v. Connor,

HAYES V. COUNTY OF SAN DIEGO 29

490 U.S. 386, 396 (1989)) (alteration and internal quotation

marks omitted).

In addition [under California law], as 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.

Id. at 258 (quoting Brown v. Ransweiler, 171 Cal. App. 4th

516, 537–38 (2009)).

The California Supreme Court took care to eschew any

“suggest[ion] that a particular preshooting protocol (such as

a background check or consultation with psychiatric experts)

is always required.” Id. Instead, the court recognized that

“[l]aw enforcement personnel have a degree of discretion as

to how they choose to address a particular situation.” Id.

Finally, the California Supreme Court observed that summary

judgment in favor of the defendants on the negligence claim

would be appropriate if the district court, after viewing the

facts in the light most favorable to the plaintiff, determined

that “no reasonable juror could find negligence.” Id. (citing

Hernandez v. City of Pomona, 207 P.3d 506, 521 (Cal.

2009)).

In my view, the district court in its analysis touched all

the bases laid out by the California Supreme Court. As the

district court noted, the facts were undisputed. See District

30 HAYES V. COUNTY OF SAN DIEGO

Court Opinion, p. 9. Taking those undisputed facts, the

district court analyzed the excessive force claim by

“contemplat[ing] whether the totality of circumstances”

justified the amount of force used. Id. (emphasis added).

Although the district court stated that it need not consider the

pre-shooting conduct in its analysis, it nevertheless addressed

that conduct and found that inclusion of the pre-shooting

circumstances would not change the outcome. See id. at n.3.

Citing Tennessee v. Garner, 471 U.S. 1, 3 (1985), the district

court concluded that under the totality of the factual

circumstances, including the pre-shooting circumstances

discussed in note 3, “it was objectively reasonable for the

Deputies to conclude that Mr. Hayes posed a significant

threat of death or serious physical injury to themselves or

others. Accordingly, their use of deadly force was reasonable

and did not violate the Fourth Amendment.” District Court

Opinion, p. 10.

The district court incorporated its reasoning regarding the

Fourth Amendment excessive force claim into the state law

negligence claim, after noting that the California negligence

standard “mirrors the reasonableness inquiry under the Fourth

Amendment.” Id. at 11 (citing Brown, 171 Cal. App. 4th at

534). The district court concluded: “As set out above,

Deputies King and Geer’s use of deadly force did not violate

the Fourth Amendment’s reasonableness requirement. It

necessarily follows that their use of deadly force was not

negligent.” Id. at 11.

I cannot imagine how or why the district court would

proceed any differently on remand. Perhaps the discussion of

the pre-shooting conduct would be lifted from the footnote

and inserted into the text. But I am convinced that the

outcome would not and should not change. On these

HAYES V. COUNTY OF SAN DIEGO 31

undisputed facts and considering the totality of the

circumstances, the district court correctly concluded that no

constitutional violation occurred. I would affirm in its

entirety the district court’s entry of summary judgment in

favor of the defendants. I respectfully dissent.