Tiffany Tabares v. City of Huntington Beach

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIFFANY TABARES, individually and No. 19-56035

as successor-in-interest to Dillan

Tabares, D.C. No.

Plaintiff-Appellant, 8:18-cv-00821-

JLS-JDE

v.

CITY OF HUNTINGTON BEACH; ERIC OPINION

ESPARZA, an individual; DOES, 1–10,

inclusive,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Josephine L. Staton, District Judge, Presiding

Argued and Submitted December 7, 2020

Pasadena, California

Filed February 17, 2021

Before: Paul J. Kelly, Jr., * Ronald M. Gould, and

Ryan D. Nelson, Circuit Judges.

Opinion by Judge R. Nelson

*

The Honorable Paul J. Kelly, Jr., United States Circuit Judge for

the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

2 TABARES V. CITY OF HUNTINGTON BEACH

SUMMARY **

Civil Rights

The panel reversed the district court’s summary

judgment for defendants on plaintiff’s state law negligence

claim, and remanded, in an action brought under 42 U.S.C.

§ 1983 and California law against a police officer arising

from the fatal shooting of plaintiff’s son, Dillan Tabares.

Huntington Beach police officer Eric Esparza shot

Tabares seven times in front of a 7-Eleven after the two were

involved in a physical altercation. The district court granted

summary judgment for Officer Esparza and the City of

Huntington Beach on the § 1983 and state law claims, and

plaintiff appealed only her negligence claim.

The panel first noted that California negligence law

regarding the use of deadly force overall is broader than

federal Fourth Amendment law. Under California law, an

officer’s pre-shooting decisions can render his behavior

unreasonable under the totality of the circumstances, even if

his use of deadly force at the moment of the shooting might

be reasonable in isolation. Federal law, however, generally

focuses on the tactical conduct at the time of shooting,

though a prior constitutional violation may proximately

cause a later excessive use of force.

The panel held that the district court erroneously

conflated the legal standards under the Fourth Amendment

and California negligence law. Specifically, the district

**

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

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

TABARES V. CITY OF HUNTINGTON BEACH 3

court: (1) inaccurately concluded that plaintiff did not point

to any evidence probative of the fact that Tabares exhibited

symptoms of mental illness that would have been apparent

to Officer Esparza; (2) did not consider that a jury could find

Officer Esparza’s pre-shooting conduct unreasonable under

California law, given Tabares’s potential mental illness; and

(3) misinterpreted the Ninth Circuit precedent set forth in

Billington v. Smith, 292 F.3d 1177 (9th Cir. 2002), in

assessing the reasonableness of Officer Esparza’s conduct at

the time of the shooting.

The panel held that plaintiff presented sufficient

evidence that Officer Esparza’s shooting of Tabares could be

found negligent by a reasonable juror under the broader

formulation of reasonableness in California law.

Considering all evidence in the light most favorable to

plaintiff, a reasonable jury could conclude that Officer

Esparza should have suspected Tabares had mental health

issues and that he unreasonably failed to follow police

protocol when dealing with potentially mentally ill persons

before using force. Finally, Officer Esparza’s decision to

shoot Tabares without warning six times––and then a

seventh––could be found by a jury to be unreasonable.

4 TABARES V. CITY OF HUNTINGTON BEACH

COUNSEL

Catherine Sweetser (argued), Paul Hoffman, and John

Washington, Schonbrun Seplow Harris Hoffman & Zeldes

LLP, Los Angeles, California, for Plaintiff-Appellant.

Daniel S. Cha (argued) and Pancy Lin, Senior Deputy City

Attorney; Brian L. Williams, Chief Trial Counsel; Michael

E. Gates, City Attorney; Office of the City Attorney,

Huntington Beach, California; for Defendants-Appellees.

OPINION

R. NELSON, Circuit Judge:

Dillan Tabares was fatally shot seven times by a police

officer in front of a 7-Eleven. Tiffany Tabares brought

federal and California law claims in response to her son’s

death (appealing only the state negligence claim). We

address the material difference between the Fourth

Amendment and California negligence law.

In considering the United States Constitution, we must

“always regard[] it as unique.” Rhode Island v.

Massachusetts, 37 U.S. 657, 673 (1838). The Constitution

is a “singular and solemn . . . experiment” created by one of

the finest group of statesmen ever assembled. The Federalist

No. 40 (James Madison). It was born of a hard-fought

struggle that against all odds wrested a fledgling nation from

oppression by the then-greatest empire on earth. The Bill of

Rights was adopted in the same vein, championed by James

Madison. When we interpret the Fourth Amendment, we

ground our jurisprudence in an understanding of the text’s

original public meaning at ratification and “traditional

TABARES V. CITY OF HUNTINGTON BEACH 5

standards of reasonableness.” See Virginia v. Moore,

553 U.S. 164, 168–69, 171 (2008). Above all, Chief Justice

Marshall reminds us, “we must never forget that it is a

constitution we are expounding.” McCulloch v. Maryland,

17 U.S. 316, 407 (1819).

California negligence law, on the other hand, is the

product of common law developed through decisions by

California courts. Justice Brandeis famously noted that

under our federalist system, “a . . . state may, if its citizens

choose, serve as a laboratory; and try novel social and

economic experiments without risk to the rest of the

country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 387

(1932) (Brandeis, J., dissenting). The U.S. Constitution and

California common law are thus two distinct legal

frameworks. “Individual States may surely construe their

own [laws] as imposing more stringent constraints on police

conduct than does the Federal Constitution.” California v.

Greenwood, 486 U.S. 35, 43 (1988). But “when a State

chooses to protect . . . beyond the level that the Fourth

Amendment requires,” these “additional protections

exclusively a[re] matters of state law.” Moore, 553 U.S.

at 171. And the California Supreme Court has held that

California negligence law “is broader than federal Fourth

Amendment law.” Hayes v. Cnty. of San Diego, 305 P.3d

252, 263 (Cal. 2013).

The district court erroneously conflated the legal

standards under the Fourth Amendment and California

negligence law. We hold that Ms. Tabares presented

sufficient evidence that Officer Eric Esparza’s shooting of

Mr. Tabares could be found negligent by a reasonable juror

under the broader formulation of reasonableness in

6 TABARES V. CITY OF HUNTINGTON BEACH

California law. 1 See id. at 258. Accordingly, we reverse the

district court’s grant of summary judgment on the negligence

claim and remand for further proceedings.

I

On the morning of September 22, 2017, Officer Esparza,

a City of Huntington Beach police officer, sat at an

intersection in his police vehicle when he noticed

Mr. Tabares standing on the sidewalk. 2 Officer Esparza had

never seen Mr. Tabares before, had not received a call for

service regarding him, and had no reason to suspect he had

a weapon or had committed a crime.

Mr. Tabares caught Officer Esparza’s attention for

several reasons. He was wearing a sweater on a warm day,

walking abnormally, made fidgeting, flinching movements

with his hands, and looked over in Officer Esparza’s

direction several times. Simultaneously, Jack Roten, a

former police officer standing on the corner, noted

Mr. Tabares talking to himself and making gestures with his

hands as he passed Roten. These behaviors made Roten

believe Mr. Tabares had mental health issues, though Roten

1

Defendants’ counsel characterizes Ms. Tabares’s state law

negligence claim as a “Hail Mary.” “A Hail Mary pass in American

football is a long forward pass made in desperation at the end of a game,

with only a small chance of success,” United States v. George, 676 F.3d

249, 251 (1st Cir. 2012), such as the 41-yard touchdown pass as time

expired in BYU’s 1980 “Miracle Bowl” victory. The negligence claim

here was not a “Hail Mary” given California law.

2

Some facts are undisputed, but where a genuine dispute of material

fact exists, we recount the facts in the light most favorable to

Ms. Tabares. Tuuamalemalo v. Greene, 946 F.3d 471, 474 (9th Cir.

2019).

TABARES V. CITY OF HUNTINGTON BEACH 7

did not think he was dangerous or threatened Roten’s

safety. 3

Officer Esparza decided to talk to Mr. Tabares. He

parked at a 7-Eleven towards where Mr. Tabares was

walking and exited his vehicle. He then asked Mr. Tabares

to stop walking to talk. Mr. Tabares responded “no” and told

Officer Esparza to leave him alone while continuing to walk

away.

Officer Esparza decided to detain Mr. Tabares for an

unspecified reason and instructed him to stop walking away

multiple times. Philip Azevedo, a customer at the 7-Eleven,

stated Mr. Tabares had a “crazed look on his face” when

entering the parking lot and “looked completely out of it.”

Shanon Forge, a nurse sitting in her car facing the 7-Eleven,

thought Mr. Tabares looked “intimidating” and

“intoxicated,” possibly under the influence of PCP or

methamphetamines. Another witness, Mike Martin,

described Mr. Tabares as having “glazed over eyes” and

possibly under the influence of drugs. Mr. Tabares

eventually turned towards Officer Esparza while speaking

loudly and aggressively.

Mr. Tabares then walked towards Officer Esparza in a

confrontational manner with his fists clenched. Forge began

3

Defendants challenge Roten’s declaration as lacking foundation

because he was across the street at the time of the shooting, though Roten

was next to Mr. Tabares when Roten observed his possible mental health

issues. But “[c]redibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge” and “all justifiable inferences are to be

drawn in [the non-movant’s] favor.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986) (citation omitted).

8 TABARES V. CITY OF HUNTINGTON BEACH

recording on her cell phone. 4 Officer Esparza backed up on

the sidewalk while instructing Mr. Tabares to stop, then

tasered him with no visible effect. Mr. Tabares then

approached Officer Esparza and punched him in the face.

The two began to fight, and Officer Esparza appeared to put

Mr. Tabares in a headlock. After several seconds, the two

ended up on the ground. Another witness, Timothy

Newtson, began to film video.

Officer Esparza was on top of Mr. Tabares while he

resisted with his back on the ground. Officer Esparza struck

Mr. Tabares several times; Mr. Tabares did not strike Officer

Esparza. Mr. Tabares grabbed at Officer Esparza’s belt

while Officer Esparza repeated “let go of the gun.” Officer

Esparza felt Mr. Tabares take an item from Officer Esparza’s

belt, which turned out to be his police flashlight. Officer

Esparza stood, drew his gun, and separated from

Mr. Tabares, as his body camera started recording. Officer

Esparza retreated about 15 feet away and saw Mr. Tabares

holding what Officer Esparza should have known was his

flashlight.

Mr. Tabares stood with his left side turned slightly

towards Officer Esparza while holding the flashlight in his

right hand. Three seconds after separating 15 feet, Officer

Esparza shot Mr. Tabares six times, shouted “get down”

4

Where, as here, multiple videos captured the shooting with “no

allegations or indications that [they were] doctored or altered in any way,

nor any contention that what [they] depict[] differs from what actually

happened,” we “allow the videotape[s] to speak for [themselves].” Scott

v. Harris, 550 U.S. 372, 378 & n.5 (2007). However, “[t]he mere

existence of video footage of the incident does not foreclose a genuine

factual dispute as to the reasonable inferences that can be drawn from

that footage.” Vos v. City of Newport Beach, 892 F.3d 1024, 1028 (9th

Cir. 2018) (citing Scott, 550 U.S. at 380).

TABARES V. CITY OF HUNTINGTON BEACH 9

twice, then shot him a seventh time after he stumbled from

the gunshots. Mr. Tabares slumped to the ground—dead.

Ms. Tabares, individually and as successor-in-interest to

her son, filed a complaint in federal district court alleging

42 U.S.C. § 1983 claims, including for excessive force under

the Fourth Amendment, and California claims for battery,

negligence, and a Bane Act violation. The district court

granted summary judgment on all claims for Defendants

Officer Esparza and the City of Huntington Beach. Tabares

v. City of Huntington Beach, No. 8:18-CV-00821-JLS-JDE,

2019 WL 4455999 (C.D. Cal. July 30, 2019). In a three-

sentence paragraph, the district court rejected Ms. Tabares’s

negligence claim “for the same reasons” it rejected her

federal claims, “to wit, that Esparza did not properly identify

Tabares’s mental illness or establish cause to initiate a stop.”

Id. at *10. Relying on Billington v. Smith, 292 F.3d 1177

(9th Cir. 2002), the district court held that “after multiple

ignored warnings and nearly a minute of sustained combat,

Esparza is objectively entitled to th[e] inference” that “no

amount of warnings or non-lethal means will succeed in

safely subduing a suspect.” Id. at *9. Ms. Tabares appeals

only her negligence claim.

II

“We review de novo the district court’s order granting

summary judgment and its interpretation of state law.” Diaz

v. Kubler Corp., 785 F.3d 1326, 1329 (9th Cir. 2015)

(internal citations omitted). We “view the facts and draw

reasonable inferences in the light most favorable to the party

opposing the summary judgment motion.” Scott, 550 U.S.

at 378 (alterations removed) (internal quotation marks and

citations omitted). But any dispute about the facts must be

“genuine” and not “blatantly contradicted by the record, so

10 TABARES V. CITY OF HUNTINGTON BEACH

that no reasonable jury could believe it.” Id. at 380; see also

Fed. R. Civ. P. 56(c).

“When interpreting state law, we are bound to follow the

decisions of the state’s highest court, and when the state

supreme court has not spoken on an issue, we must

determine what result the court would reach based on state

appellate court opinions, statutes and treatises.” Diaz,

785 F.3d at 1329 (cleaned up). “We will ordinarily accept

the decision of an intermediate appellate court as the

controlling interpretation of state law,” Tomlin v. Boeing

Co., 650 F.2d 1065, 1069 n.7 (9th Cir. 1981), “unless the

federal court finds convincing evidence that the state’s

supreme court likely would not follow it,” Ryman v. Sears,

Roebuck & Co., 505 F.3d 993, 994 (9th Cir. 2007). To

affirm here, we must decide based on the record before us

that a verdict in favor of Defendants is the only conclusion a

reasonable jury could reach. See Anderson, 477 U.S. at 248. 5

III

A

We first compare the contours of California negligence

law governing an officer’s use of deadly force with the

Fourth Amendment standard. Under California negligence

law, “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.”

5

Defendants argue that Ms. Tabares is collaterally estopped from

appealing the district court’s order granting summary judgment to

Defendants on her state law claim. Our de novo review means we are

not bound or estopped by the district court’s interpretations of the law.

Nor is the grant of summary judgment here a finding of fact. See

Anderson, 477 U.S. at 250.

TABARES V. CITY OF HUNTINGTON BEACH 11

Hayes, 305 P.3d at 255 (cleaned up). And “officers have a

duty to act reasonably when using deadly force.” Id. at 256

(citations omitted). “[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.” Id. at 258 (quoting Graham v. Connor,

490 U.S. 386, 396 (1989)). 6 The officer’s conduct must only

“fall[] within the range of conduct that is reasonable” viewed

“in light of the totality of circumstances.” Id. at 256, 258

(citation omitted).

Officers are liable “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.” Id. at 254 (emphasis added). Under

California law, the officer’s pre-shooting decisions can

render his behavior unreasonable under the totality of the

circumstances, even if his use of deadly force at the moment

of shooting might be reasonable in isolation. See, e.g.,

Mendez v. Cnty. of Los Angeles, 897 F.3d 1067, 1082–83

(9th Cir. 2018); Grudt v. City of Los Angeles, 468 P.2d 825,

831 (Cal. 1970). Federal law, however, generally focuses on

the tactical conduct at the time of shooting, see Scott v.

Henrich, 39 F.3d 912, 914 (9th Cir. 1994), though a prior

6

Defendants note there was an arrest warrant for Mr. Tabares’s

failure to report to parole and that he may have been involved in the

murder of Richard Darland. However, Officer Esparza admits he did not

know or have reason to suspect these facts before interacting with

Mr. Tabares, so they are irrelevant to the reasonableness analysis here.

See Glenn v. Washington Cnty., 673 F.3d 864, 872, 873 n.8 (9th Cir.

2011) (“We cannot consider evidence of which the officers were

unaware—the prohibition against evaluating officers’ actions ‘with the

20/20 vision of hindsight’ cuts both ways.” (quoting Graham, 490 U.S.

at 396)).

12 TABARES V. CITY OF HUNTINGTON BEACH

constitutional violation may proximately cause a later

excessive use of force, Mendez, 897 F.3d at 1076–82.

Thus, California negligence law regarding the use of

deadly force overall is “‘broader than federal Fourth

Amendment law.’” Villegas ex rel. C.V. v. City of Anaheim,

823 F.3d 1252, 1257 n.6 (9th Cir. 2016) (quoting Hayes,

305 P.3d at 263). 7

California courts do generally use “[t]he same

consideration” as federal law in assessing an officer’s

tactical conduct at the time of shooting as part of the totality

of the circumstances. Hernandez, 207 P.3d at 515.

7

Defendants argue for the first time on appeal that “[t]here can be

no civil liability under California law as the result of a justifiable

homicide” under Cal. Penal Code § 196 (2019). See Martinez v. Cnty.

of Los Angeles, 47 Cal. App. 4th 334, 349 (Ct. App. 1996). Under this

theory of immunity, they assert an officer may “‘press forward and make

the arrest, using all the force [reasonably] necessary to accomplish that

purpose.’” See Hernandez v. City of Pomona, 207 P.3d 506, 519 (Cal.

2009) (citations omitted). But this new argument boils down to the same

issue litigated here: whether Officer Esparza’s conduct was objectively

reasonable or not. Therefore, it is not necessary to address this argument

separately from the analysis under Hayes, even were it not waived. See

Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988–89 (9th Cir.

2017).

Separately, there is no “qualified immunity under California law”

comparable to federal § 1983 jurisprudence. Venegas v. Cnty. of Los

Angeles, 153 Cal. App. 4th 1230, 1249 (Ct. App. 2007); see also Mendez,

897 F.3d at 1083–84 (rejecting claims of immunity in negligence claims

under California Government Code § 821.6, which is limited to

malicious-prosecution claims, and California Government Code § 820.2,

which “applies only to policy decisions, not to operational decisions”);

Conway v. Cnty. of Tuolumne, 231 Cal. App. 4th 1005, 1015 (Ct. App.

2014) (“[D]iscretionary immunity does not apply to . . . using

unreasonable force when making an arrest or overcoming resistance to

it.” (citations omitted)).

TABARES V. CITY OF HUNTINGTON BEACH 13

California courts consider “the severity of the crime at issue,

whether the plaintiff posed a reasonable threat to the safety

of the officer or others, and whether the plaintiff was actively

resisting detention or attempting to escape.” Id.

Under federal law, deadly force can be “reasonable only

if ‘the officer has probable cause to believe that the suspect

poses a significant threat of death or serious physical injury

to the officer or others.’” Henrich, 39 F.3d at 914 (emphasis

omitted) (quoting Tennessee v. Garner, 471 U.S. 1, 3

(1985)). “Other relevant factors include the availability of

less intrusive alternatives to the force employed, whether

proper warnings were given and whether it should have been

apparent to officers that the person they used force against

was emotionally disturbed.” Glenn, 673 F.3d at 872. “Even

when an emotionally disturbed individual is ‘acting out’ and

inviting officers to use deadly force to subdue him, the

governmental interest in using such force is diminished by

the fact that the officers are confronted . . . with a mentally

ill individual.” Deorle v. Rutherford, 272 F.3d 1272, 1283

(9th Cir. 2001).

B

Against this backdrop, the district court made three

errors. First, it inaccurately concluded that Ms. Tabares did

“not point to any evidence probative of the fact that

[Mr.] Tabares exhibited symptoms of mental illness that

would have been apparent to Esparza.” Tabares, 2019 WL

4455999 at *6. In doing so, the district court “fail[ed] to

credit evidence that contradicted some of its key factual

conclusions” and “improperly weighed the evidence and

resolved disputed issues in favor of the moving party.”

Tolan v. Cotton, 572 U.S. 650, 657 (2014) (alterations

adopted) (internal quotation marks and citation omitted).

14 TABARES V. CITY OF HUNTINGTON BEACH

Second, the district court conflated the broader

California negligence standard regarding pre-shooting

conduct with the Fourth Amendment standard. 8 Tabares,

2019 WL 4455999 at *10. It did not consider that a jury

could find Officer Esparza’s pre-shooting conduct

unreasonable under California law, given Mr. Tabares’s

potential mental illness.

And third, the district court misinterpreted Ninth Circuit

precedent in assessing the reasonableness of Officer

Esparza’s conduct at the time of the shooting. It essentially

concluded that California law precludes negligence when an

officer fights with an unarmed man, retreats 15 feet, and then

shoots the stationary man holding a flashlight seven times

without warning. Id. at *7, *9. Neither federal law

governing tactical conduct, nor California law looking at the

same tactical considerations as federal law, supports such a

conclusion.

1

We turn to the first issue. The record, including

declarations by two former police officers and Azevedo’s

8

Defendants argue that Ms. Tabares presents a “new theory of pre-

shooting negligence” on appeal that was waived by failing to bring it

before the district court. But Defendants acknowledge that below,

Ms. Tabares noted that California negligence law is broader than federal

law in excessive force and cited Hayes, 305 P.3d 252. The district court

recognized this argument. Tabares, 2019 WL 4455999 at *10. And

Defendants would not “have tried [the] case differently either by

developing new facts in response to or advancing distinct legal

arguments against the issue.” Janes v. Wal-Mart Stores Inc., 279 F.3d

883, 888 n.4 (9th Cir. 2002) (citation omitted). Even assuming this

argument was not raised, “the pertinent record has been fully developed”

and Defendants suffer no prejudice since they responded in their

Answering Brief. See Mashiri, 845 F.3d at 988–89.

TABARES V. CITY OF HUNTINGTON BEACH 15

testimony, shows a reasonable jury could find that Officer

Esparza should have suspected Mr. Tabares could have

mental health issues.

Roten, an eyewitness and former police officer, believed

Mr. Tabares may have had mental health issues because he

was talking to himself and gesturing with his hands. Officer

Esparza observed Mr. Tabares at the same time Roten

observed these behaviors. Officer Esparza cited

Mr. Tabares’s unusual behavior, including his hand

gestures, as a reason for stopping him.

Roger Clark, a 27-year veteran of the Los Angeles

County Sheriff’s Department who retired as a Lieutenant,

submitted an expert declaration supporting this conclusion.

Clark references California’s Peace Officer Standards and

Training (“P.O.S.T.”) “applicable to all state police

officers,” which could be used by a “rational jury . . . in

assessing whether the officer[’s] use of force was

unreasonable.” Smith v. City of Hemet, 394 F.3d 689, 703

(9th Cir. 2005) (citation omitted); see also People v. Sibrian,

3 Cal. App. 5th 127, 136 (Ct. App. 2016) (“[E]xpert

testimony on the use of force has often been admitted in

California excessive force cases without objection.”

(citations omitted)).

Based on his review of the evidence, including relevant

videos, Roten’s declaration, and the police incident report,

Clark concluded that “[a] reasonable officer in Officer

Esparza’s position acting with consistent standard police

practices would have known or should have known that

Mr. Tabares was mentally ill,” because “[o]fficers are

trained to recognize indicators of mental illness, such as:

fearful or inappropriate behavior, excitability, and

disorganized speech and thought patterns.” Further,

16 TABARES V. CITY OF HUNTINGTON BEACH

Azevedo stated that Mr. Tabares looked “out of it” and

“crazed” prior to the shooting.

Considering all evidence in the light most favorable to

Ms. Tabares, a reasonable jury could conclude that Officer

Esparza should have suspected Mr. Tabares had mental

health issues, based on P.O.S.T. and Officer Esparza’s

observations similar to those of other witnesses who

believed Mr. Tabares had mental health issues. See, e.g.,

Vos, 892 F.3d at 1029, 1034. The district court improperly

“credited the evidence of the party seeking summary

judgment and failed properly to acknowledge key evidence

offered by the party opposing that motion.” Tolan, 572 U.S.

at 659; see also id. at 660 (“[G]enuine disputes are generally

resolved by juries in our adversarial system.”).

2

Second, the district court conflated Fourth Amendment

excessive force standards with California negligence law.

California negligence law overall is “‘broader than federal

Fourth Amendment law’” in excessive force cases. Villegas,

823 F.3d at 1257 n.6 (quoting Hayes, 305 P.3d at 263). In

California, an officer’s pre-shooting decisions can make his

later use of force unreasonable under the totality of the

circumstances. See Mendez, 897 F.3d at 1082–83; Grudt,

468 P.2d at 831. In this case, a juror could find Officer

Esparza unreasonably failed to follow police protocol

dealing with potentially mentally ill persons before using

force. Officer Esparza’s “failure to follow a safety rule

promulgated by his employer, regardless of its substance,

serves as evidence of negligence.” Grudt, 468 P.2d at 831

(citation omitted); see also People v. Brown, 245 Cal. App.

4th 140, 171 (Ct. App. 2016) (“[O]fficer training and tactics

can potentially be relevant for purposes of tort liability.”).

TABARES V. CITY OF HUNTINGTON BEACH 17

Ample evidence supports that Officer Esparza

potentially failed to deescalate the situation per P.O.S.T.

regarding potentially mentally ill individuals. For instance,

Clark stated that Officer Esparza “failed to respond as taught

by P.O.S.T., which states that the appropriate tactical actions

officers should do when confronted with a mentally ill

individual is [sic] to request backup, calm the situation,

avoid physical contact, determine if the person is taking

medication, acknowledge the person’s feelings, and not to

make threats.” Before interacting with Mr. Tabares, Officer

Esparza had no reason to suspect Mr. Tabares was

dangerous, had a weapon, or had committed a crime. But

Officer Esparza knew in advance that Mr. Tabares was

acting strangely. And, as Clark stated, Officer Esparza

should have used reasonable and generally accepted police

practices to deal with Mr. Tabares. Cf. City of Hemet,

394 F.3d at 703 (holding a “rational jury could rely upon”

evidence “that the officers’ conduct violated applicable

police standards and that there were alternative techniques

available for subduing him that presented a lesser threat of

death or serious injury” when “assessing whether the

officers’ use of force was unreasonable”). 9

3

Finally, Officer Esparza’s decision to shoot Mr. Tabares

without warning six times—and then a seventh—could be

found by a jury to be unreasonable. The district court’s

9

Separately, Ms. Tabares argues there was no reasonable suspicion

for the stop and that this “further made the manner of the attempted

detention unreasonable.” The district court decided there was no Fourth

Amendment violation because Mr. Tabares was not unreasonably

detained. Tabares, 2019 WL 4455999 at *4–*5. But even if the officer’s

alleged pre-shooting negligence does not establish a constitutional

violation, it may establish negligence under California law.

18 TABARES V. CITY OF HUNTINGTON BEACH

holding to the contrary is based on a misreading of

Billington, 292 F.3d 1177, and imputes this misreading of

Ninth Circuit precedent directly into the broader California

negligence analysis.

The Roten and Clark declarations place in material

dispute any immediate or serious threat to Officer Esparza at

the time of the shooting. Roten “certainly would not have

shot the subject if [he] were the officer” because there was

no “immediate” or “serious threat posed to the officer at the

time of the shots.” Roten believed Mr. Tabares “looked tired

and looked like he was done with the struggle.” He noted

that officers are “trained that deadly force should only be

used as a last resort” and “this situation did not come close

to necessitating the use of deadly force.” True, Roten did

not observe Mr. Tabares holding Officer Esparza’s

flashlight. Regardless, drawing “all justifiable inferences”

of the evidence in favor of Ms. Tabares, Roten’s testimony

supports that Mr. Tabares may not have posed a threat at the

time of shooting based on his demeanor. See Anderson,

477 U.S. at 255.

According to Clark, Officer Esparza did not respond

according to P.O.S.T. Officer Esparza would have told

Mr. Tabares to “drop it” if he thought Mr. Tabares had a

knife. Further, Clark believed it “was not an immediate

defense of life situation,” because “Officer Esparza had less

than lethal options available to him at the time of the

shooting” and “[a] reasonable officer in Officer Esparza’s

position would have known or should have known that

Mr. Tabares was holding the officer’s flashlight.” The

district court thus correctly held that a reasonable dispute of

material fact existed and a jury could infer that Officer

Esparza should have known it was a flashlight, not a knife.

See id.; Tabares, 2019 WL 4455999 at *7.

TABARES V. CITY OF HUNTINGTON BEACH 19

Officer Esparza’s failure to give Mr. Tabares a warning

or instruct him to put his hands up, drop the item, or freeze

could be considered unreasonable by a jury. A failure to

warn before using deadly force could be unreasonable unless

impracticable. Harris v. Roderick, 126 F.3d 1189, 1201 (9th

Cir. 1997). The evidence supports that Mr. Tabares was

“done with the struggle.” Moreover, after his sixth shot,

Officer Esparza waited a few seconds and told Mr. Tabares,

“get down,” before firing a seventh shot, suggesting he could

have warned him before his first shot.

The use of deadly force may also be unreasonable apart

from any warning if Mr. Tabares did not “pose[] a significant

threat of death or serious physical injury to the officer or

others” at the time of shooting. Henrich, 39 F.3d at 914

(internal quotation marks and citation omitted); see also

Deorle, 272 F.3d at 1281 (holding an officer’s actions could

be unreasonable if they resulted from “[a] desire to resolve

quickly a potentially dangerous situation” rather than an

immediate threat). A reasonable jury could find the video

evidence does not show that Mr. Tabares, 15 feet away and

stationary, posed a significant immediate threat to Officer

Esparza or any bystanders. Cf. Martinez, 47 Cal. App. 4th

at 345 (holding there was a threat where the suspect had

stated he intended to kill the police officer, was indisputably

armed with a knife, and continually advanced to within ten

feet despite warnings).

The district court misread Billington in deciding an

immediate significant threat existed. In Billington,

Detective Smith, a police officer, was grappling over control

of a gun with Hennessey, the decedent. We held Detective

Smith “could have reasonably shot Hennessey even if he had

just pushed Hennessey back a few feet.” 292 F.3d at 1185.

Here, the district court found that “hypothetical posed . . .

20 TABARES V. CITY OF HUNTINGTON BEACH

describes precisely what happened.” Tabares, 2019 WL

4455999 at *8. But that hypothetical is not what happened

here.

Rather, the factual dispute over the distance between

Detective Smith and Hennessey in Billington was

“immaterial . . . because either way, Detective Smith was

locked in hand-to-hand combat and losing.” 292 F.3d

at 1185. The witness who testified that Smith and

Hennessey were separated by several feet also stated

“Hennessey was charging Detective Smith when he shot

Hennessey” and “at the moment of the shooting,

[Hennessey] had raised his right hand to hit Detective Smith

again.” Id. at 1182. And the powder residue showed that

“Hennessey was shot from a distance of eight to fourteen

inches.” Id. Even if separated by a few feet, Hennessey and

Detective Smith were “locked in combat” because

Hennessey was charging and about to hit Detective Smith.

Id. at 1185.

Here, Officer Esparza was not “locked in hand-to-hand

combat” with Mr. Tabares at the time of the shooting.

Uncontroverted video evidence shows that Mr. Tabares was

not charging Officer Esparza, nor was he attempting to hit

(nor had the capacity to hit) Officer Esparza after the initial

scuffle. Rather, Mr. Tabares was standing still 15 feet

away—much farther than the distance of eight to fourteen

inches in Billington. Mr. Tabares moved only after six shots

were fired, taking one step off the curb to steady himself

before a seventh shot was fired and he crumpled to the

ground. 10

Defendants’ counsel asserts that Mr. Tabares was moving towards

10

Officer Esparza before the shooting. But the video evidence taken from

TABARES V. CITY OF HUNTINGTON BEACH 21

Even as a matter of federal law, much less of California

law, Billington does not mean “after multiple ignored

warnings and nearly a minute of sustained combat, Esparza

[was] objectively entitled to” infer “that no amount of

warnings or non-lethal means will succeed in safely

subduing” Mr. Tabares standing still 15 feet away. See

Deorle, 272 F.3d at 1282 (holding a non-deadly beanbag

round was an unreasonable excessive use of force where

“[t]here was no immediate need to subdue” a threatening

suspect); Glenn, 673 F.3d at 867–68, 874 (holding

similarly); contra Tabares, 2019 WL 4455999 at *9.

Finally, a reasonable jury could find Officer Esparza’s

firing seven shots to be unreasonable, even had an initial

threat existed. See Zion v. Cnty. of Orange, 874 F.3d 1072,

1076 (9th Cir. 2017) (holding “a reasonable officer would

reassess the situation rather than continue shooting” if the

suspect ceased to be a threat). After six shots, the only

command Officer Esparza gave Mr. Tabares was, “get

down,” and Officer Esparza did not give Mr. Tabares any

time to understand or comply with the command before

firing the seventh shot. Neither Roten nor Clark believed a

threat existed at the time of the shooting. Thus, a jury could

find that the number of shots, particularly the seventh, was

unreasonable.

IV

We appreciate and respect the great challenges that law

enforcement and first responders face daily in selflessly

multiple angles shows that Mr. Tabares was not; rather, Mr. Tabares took

a step away from Officer Esparza, if he moved at all. Defendants’

version of events is “blatantly contradicted by the record.” See Scott,

550 U.S. at 380.

22 TABARES V. CITY OF HUNTINGTON BEACH

carrying out their duties. We do not judge Officer Esparza’s

behavior “with the 20/20 vision of hindsight.” Graham,

490 U.S. at 396. Indeed, we acknowledge the severe stress

that can result from situations where an officer may feel his

safety is at risk. Ultimately, we do not “hold that a

reasonable jury must find in favor of the plaintiff[] on this

record, only that it could.” Gonzalez v. City of Anaheim,

747 F.3d 789, 797 (9th Cir. 2014) (en banc) (emphases

added). We merely reiterate that under California’s broad

formulation of negligence, Ms. Tabares’s negligence claim

survives summary judgment. 11

REVERSED AND REMANDED.

11

The district court is “free on remand to decline to exercise

supplemental jurisdiction over the state-law claim[] and allow plaintiff[]

to bring [it] in state court.” Depot, Inc. v. Caring for Montanans, Inc.,

915 F.3d 643, 668–69 (9th Cir. 2019); see also 28 U.S.C. § 1367(c)(3).