HAYES v. COUNTY OF SAN DIEGORespondents’ Opening Brief on the MeritsCal.September 12, 20119th Cir. No. 09-55644 S$193997 IN THE SUPREME COURT OF CALIFORNIA En Bane _guspeMe COURT be C.H., a minor by and through her guardian ad litem, DAVID J. HAYES, SEP 42 201 Plaintiff/Appellant/Respondent, evederick K. Ohirich Clerk rT v. DePuy! RC | COUNTYOF SAN DIEGO dba San Diego County Sheriff's 8.25(0) Department,et al., Defendants/Appellees/Petitioners. On Appeal from the United States District Court for the Southern District of California Honorable Dana M.Sabraw,District Judge (DC No. CV-07-1738-DMS(JMA), Southern California, San Diego) PETITIONERS’ OPENING BRIEF ON THE MERITS THOMASE. MONTGOMERY, County Counsel County of San Diego By MORRISG.HILL, Senior Deputy (Bar No. 97621) 1000 Pacific Highway, Room 35 San Diego, California 92101-2469 Telephone: (619) 531-4877 Attorneys for Defendants/Appellees/Petitioners County of San Diego, Mike King and Sue Geer 9th Cir. No. 09-55644 8193997 IN THE SUPREME COURT OF CALIFORNIA | En Banc C.H., a minor by and through her guardian ad litem, DAVID J. HAYES, Plaintiff/Appellant/Respondent, Vv. COUNTY OF SAN DIEGOdba San Diego County Sheriff's Department, etal., Defendants/Appellees/Petitioners. On Appeal from the United States District Court for the Southern District of California Honorable Dana M.Sabraw,District Judge (DC No. CV-07-1738-DMS(JMA), Southern California, San Diego) PETITIONERS’ OPENING BRIEF ON THE MERITS THOMASE. MONTGOMERY,County Counsel County of San Diego By MORRISG. HILL, Senior Deputy (Bar No. 97621) 1600 Pacific Highway, Room 355 San Diego, California 92101-2469 Telephone: (619) 531-4877 Attorneys for Defendants/Appellees/Petitioners County of San Diego, Mike King and Sue Geer TOPICAL INDEX Page TABLE OF AUTHORITIES................eussssetensssetasanssesensanesesesaaseseseen iii I QUESTION PRESENTED....... deseeneeeseesdeeeseeseeeecsetecseceeeeeserseneesareaees 1 A. The Question (Restated By This Court) .........ccccceccssceseeseeseseees 1 B. Petitioners’ Proposed Response .........::c:ccccceceeceeeeeeesseenseenenseeeneeees 1 II INTRODUCTION ounce cecceccesssssesseceeceeeeteeseaceseesesessessaessaseaaseneesueess 1 A. The Partics ....csscsssssssssssssssssssssscssssssseesesssssssssssssessessssssssesesseseseeee I B. Question Stated by the Ninth Circuit .0.......ccceceeeseeeeeseessees 1 WI FACTS on... sesseecessessssssesenensstususutusssssassansnsseesssasessssesssssseesesesseseessee2 A. Brief Factual Summary 20.0... cccccccseeeeseeteesseseeescesesecseessesseseees2 B. Negligence Discussion in Withdrawn Majority Opinion.............3 TV DISCUSSION ooo .eeecceecccccessseseeteeeseeseesseesessaecesecsseesteceseenseeeeesseesaees 5 A. The Practical Issue ......ccccccccescsssscsccessseceseesecessssesseessssasesseseeees 5 B. Federal Liability Theories 20.0... ceccceccesessesecsseeseeeseesesesesseeess6 1. Fourth Amendment Unreasonable Seizure ...........0...ccceeeees6 2. Fourteenth Amendment Substantive Due Process..............weed C. California Tort Liability 0.0.0.cece csesecseceseesseseescsecseessesseesses 8 1. California Intermediate Appellate Opinions...........0.0.000.on) a. Reasonableness Under Totality of Circumstances. teseeeneen9 b. Privilege. occ ccccescseessesssessessseeeesesecerecsesssecsssesseessesseneas 11 C. Pre-Force Tactics. .occccceecccsesssccseeseeceesessseesseesseesseessseas 13 ‘TOPICAL INDEX (Cont’d.) Page d. Reasonableness and Pre-Force Tactics. ........ccsessscesseseeees 14 2. California Supreme Court Opinions ..........eeceeeccseeeeeneeeeneeeees 16 D. Argument oo...cececsecseeeseceeseeesesesseneceeecaaeeceeseaeesseesseeseeanenaeeess23 Vv CONCLUSION oooee eceeccesesseeessecseseaceesnensessnecseseaeseneeseeteeseeesseeeaes25 CERTIFICATE OF WORD COUNT 1... .cccccceseesceeeeeeeeeeeseeeseaseessseeseseeees27 ii TABLE OF AUTHORITIES Page Adamsv. City ofFremont (1998) 68 Cal.App.4th 243 wees 13, 23 Billington v. Smith (2002) 292 F.3d 1177 ...cccessssscsesssseesssseseessesceceess 6,7 Bingue v. Prunchak (9th Cir. 2008) 512 F.3d 1169 .o...ccecccceceesstsereeeees 8 Brooksv. Sessagesimo (1934) 139 Cal.App. 679 .....cccceccessessesscssesscrsesees 13 Brown v. Ransweiler (2009) 171 Cal.App.4th 516 oo...cece 14, 15 County of Sacramento v. Lewis (1998) 523 U.S.833.....sessuseessensseeeteseeeessen 8 Davidsonv. City of Westminster (1982) 32 Cal.3d 197 oo...18 Edsonv. City ofAnaheim (1998) 63 Cal.App.4th 1269 oo. 9,10, 11 Gilmore v. Superior Court (1991) 230 Cal.App.3d 416 wo. 12, 13 Hayesv. County of San Diego, 2011 U.S.App.LEXIS 11987 (9th Cir. 2011) (Hayes TD) oieecccscccsssscsessesessesseeseseessesecsesscsecsacavenes 2,5 Hayes v. County of San Diego (9th Cir. 2011) 638 F.3d 688 (Hayes D) occ eeessssssessesseesesscssssecsecsesseesseesecssseseesesaeens 2, 4, 6, 8, 22, 23, 25 Hernandez v. City of Pomona(2009) 46 Cal.4th 501 oo...eee22 Horwich v. Superior Court (1999) 21 Cal.4th 272 woo 12, 13, 17 Kisbeyv. State of California (1984) 36 Cal.3d 415 oocccceecessteeeeees20 Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, reh'g denied (July 1, 2011), review filed (July 26, 2011) oo.cccceceseseesteeseseseseerees 16 Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703 oo.20 Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334 0.00... 9, 10 Minchv. California Highway Patrol (2006) 140 Cal.App.4th 895 wou. 17 Munoz v. City of Union City (2004) 120 Cal.App.4th 1077......... 10, 13, 23 iii TABLE OF AUTHORITIES (Cont’d.) Page Munozv. Olin (1979) 24 Cal.3d 629 ooo icccccccccsceetcssseeeeeesectseseeeeseenes 16,17. Nakashimav. Takase (1935) 8 Cal.App.2d 35 ........... ceesaneeeeeneeeeeeeteneeeaeeess 12 Petersonv. City ofLong Beach (1979) 24 Cal.3d 238 ooceeeeeswel7 Porter v. Osborn (9th Cir. 2008) 546 F.3d 1131 occccecseseeteees beseesessees 8 Susag v. City of Lake Forest (2002) 94 Cal.App.4th L401 Leeeeeeeees 10 Williamsv. State of California (1983) 34 Cal.3d 18 oo.cccccsesecseeeeees 19 Yountv. City of Sacramento (2008) 43 Cal.4th 885 .o..ccccccceesesseeees 10 Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112 oeeeeeeeeeeee21 STATUTES State: Evidence Code S€CHON 669(a) ....cceccccscsscesscessscssessesesesseeeesscsesesscsusssesseassescessecssesesssesseserseases 17 SECON 669.1 ooo. eecccccsesseesseenseeseceseeaeeeseeeeseaeeseeeneeseesesseessessesasssesseeseeeaes 17 Penal Code SeCHON 196 oe eececccsceseessecssseeseeseecseeeaeesseceecsaeesesseessenseceeessesssseesseseateseesues 17 Federal: 42 United States Code Section 1983 occcecccscceneesteeeesaececeeseeesecseeeseeeeecaeeseeessesssseseesescaesseseseeseaes6 SeCtON 1988 oe.eescssccsssecsseeseseesseesessesessscaeeesssssseecesaaeeaaecesssseerssssesseeseenees9 OTHER Black’s Law Dictionary, 8th Edition, Thomson West (1999) ....0..0...6 Cal. Rules of Court, rule 8.520(a)(6) ......ccccccccccesessececsecsecesesseeesseeeesssseusesees 1 iv I QUESTION PRESENTED A. The Question (Restated By This Court). Whether under California negligence law, liability can arise from tactical conduct and decisions employed by law enforcement preceding the use of deadly force. B. Petitioners' Proposed Response. Petitioners propose the following responseto the Ninth Circuit: “Under California negligence law, tactical conduct and decisions employed by law enforcement preceding the use of deadly force are part of the totality of circumstancesif they are claimed to have caused or contributed to the | subsequent use of deadly force. Ifa use of deadly force is lawful under the : totality of circumstances, tactical conduct and decisions employed by law enforcement preceding the use of deadly force that are claimed to have caused or contributed to the subsequent use of deadly force may not be a basis of a separate cause of action for law enforcement negligence.” 8 INTRODUCTION A. The Parties. This Court's order filed August 10, 2011 deemed the County of San Diego and Sheriffs Deputies Mike King and Sue Geeras the petitioners pursuant to Cal. Rules of Court, rule 8.520(a)(6). The respondentis Chelsey Hayes (misspelled “Chelsea” in this Court's order), who was plaintiff and appellant in the underlying federal proceedings. Sheis the daughter of the decedent Shane Hayes. B. Question Stated by the Ninth Circuit. The question of California law stated to this Court by the United States Court of Appeals for the Ninth Circuit was worded byit as follows: “Whether under California negligence law, sheriff's deputies owe a duty of care to a suicidal person when preparing, approaching, and performing a welfare check on him.” (Hayes v. County ofSan Diego, 2011 U.S.App.LEXIS 11987 (9th Cir. 2011) (Hayes II).) This Court restated the Ninth Circuit’s question, and agreed to decide the restated question. Hi FACTS A. Brief Factual Summary. The facts of this case (in the light most favorable to respondent) are set forth in the Ninth Circuit majority opinion that was withdrawn whenthe | Ninth Circuit certified the now-restated question. (See Hayes v. County of San Diego (9th Cir. 2011) 638 F.3d 688, 690-691 (Hayes I).) Briefly, the incident started out as a residential domestic violence call. Resident Geri Neill told Deputy King(first to arrive) that her boyfriend Shane Hayes had attempted suicide earlier that evening, and that he had attempted suicide previously. Ms. Neill said there were no gunsin the house, and that Mr. Hayes was in a bedroom. Deputy King, followed by Deputy Geer, walked towards the bedroom to check on his welfare, with their guns holstered. Before they got to the bedroom, Mr. Hayes emerged from the dimly-lit kitchen area with his right hand behind his back, saying something about being takento jail or prison. Deputy King ordered Mr. Hayesto show his hands. He raised them to shoulderlevel, clenching a big knife in his right fist while advancing on Deputy King. Ms. Neill yelled at Mr. Hayes to drop the knife (an undisputed fact not mentioned in the Ninth Circuit opinion) and the deputies drew their guns andfired, striking Mr. Hayes three times. Mr. Hayesfell but remained conscious. He died in surgery a few hours later, never explaining his actions. Respondentlives in another state; she was not present when her father was shot. She suedpetitioners in United States District Court for the Southern District of California for money damages under 42 United States Codesection 1983 and California law on various theories, including negligence. Petitioners moved for summary judgment, relying primarily on Ms. Neill's undisputed account, which corroborated the deputies' accounts in all material respects, and was supported by Ms. Neill's demonstration of how Mr. Hayesheld the knife (a big meat-carving knife) at about a 45- degree angle in his right fist as he advanced within almoststriking distance, while Deputy King retreated. The District Court granted defense summary judgment, and respondent appealed. B. Negligence Discussion in Withdrawn Majority Opinion. The Ninth Circuit panel majority discussed the negligence issue in its now-withdrawnopinion as follows: Appellant contends that Deputies King and Geer were negligent because they failed to gatherall potentially available information about Hayes or request a PERT team' before confronting him.... After the district court granted summary judgment, however, the California Supreme Court indicated that law enforcement officers might be subject to negligenceliability for certain preshooting conduct. .. . Hernandez v. City ofPomona, 46 Cal.4th 501, 515-22 (2009). In Hernandez, the court granted review to consider the following question: “When a federal court enters judgment in favor of the defendants in a civil rights claim brought under ' The withdrawn opinion did not explain the term “PERT team.” In San Diego, the term “PERT team”refers to a “Psychiatric Emergency Response Team,” described as “a law enforcementofficer/deputy and a licensed mental health clinician whoare called to the scene to provide rapid response andassist field officer requests for assistance with mentally disordered individuals or people in crisis. The PERT program is designed to return law enforcement officers to the field as soon as possible while the PERTteam conducts an evaluation and assessmentofthe situation and/or individual. That individualis then referred to the proper treatment.” See accessed August 23, 2011. 42 United States Code section 1983. .., in which the ~ plaintiffs seek damages for police use of deadly and constitutionally excessive force in pursuing a suspect, and the court then dismisses a supplemental state law wrongful death claim arising out of the same incident, what, if any, preclusive effect does the judgment havein a subsequentstate court wrongful death action?" /d. at 505. The court held "that on the record and concededfacts here, the federal judgment collaterally estops plaintiffs from pursuing their wrongful death claim, even on the theory that the officers’ preshooting conduct wasnegligent." Jd. at 506. In doing so, the California Supreme Court did not hold that law enforcement officers owed no duty of care in regards to preshooting conduct, as the lower court in [Munoz v.] City of Union City {120 Cal.App.4th 1077, 1097 (2004)] had held. Instead, the court found that the officers' preshooting conduct did not breach applicable standards of care. Jd. at 515-22. The court in Hernandez did not address City of Union City or Adams[v. City ofFremont, 68 Cal.App.4th 243, 276 (1998)], nor did it expressly determine that law enforcement officers owe a duty ofcare in regards to preshooting conduct. Nevertheless, the court's analysis of whether the officers’ preshooting conduct independently constituted breach of a duty ofcare strongly indicates that California's highest court would not adopt a rule that officers owe no such duty. Indeed, in a concurring opinion, Justice Moreno arguedthat the court should not have reached the issue “because plaintiffs are entitled to amend their complaintto allege preshooting negligence.” Jd. at 522 (Moreno, J., concurring). The majority responded,stating “we find that plaintiffs have adequately shown how they would amendtheir complaint to allege a preshooting negligence claim, and that we must determine whether any of the preshooting acts plaintiffs have identified can support negligence liability.” Jd. at 521.18. This discussion strongly indicates that the California Supreme Court believes a duty of care is owed andthat courts must address breach and causation. [Footnote omitted.] (Hayes I, supra, 638 F.3d at 695-696.) After the opinion was issued, petitioners moved for panel rehearing and rehearing en banc. The Ninth Circuit withdrew its published opinion andcertified its question of California law to this Court. (Hayes I, supra, 2011 U.S.App.LEXIS 11987.) IV DISCUSSION A. The Practical Issue. Should law enforcement officers who defensively use deadly force in emergencies face civil liability to their assailants (or their assailants’ beneficiaries) because those officers might have used different emergency tactics that might have avoided the need for them to defend themselves against those assailants? If such emergencytactics can support law enforcement negligence liability, does such tactical negligence support a stand-alone cause of action that can independently result in civil liability for causing the use of defensive deadly force, even when the force was objectively reasonable and/or privileged from liability under the totality of circumstances? Commonsenseteaches that law enforcementofficers (like everyone except suicidal people) already havea self-preservation incentive to avoid life-threatening situations. However, law enforcementofficers are expected to sometimes contact persons who might wish them harm, and who have the ability to act on such wishes. If law enforcementofficers routinely avoid situations where they might have to defend against potential assaults, they will, at the same time, avoid situations where they might help or rescue those they serve. Forclarification, all criteria for “suicide-by-cop” were not present. Black’s Law Dictionary defines “suicide-by-cop”as follows: Suicide-by-cop. Slang. A form of suicide in which the suicidal person intentionally engagesin life-threatening behavior to induce a police officer to shoot the person. Frequently, the decedentattacks the officer or otherwise -5- threatens the officer’s life, but occasionally a third person’s life is at risk. A suicide-by-copis distinguished from other police shootings by three elements. The person must: (1) evince an intent to die; (2) consciously understandthefinality of the act; and (3) confront a law enforcementofficial with behavior so extremethat it compels that officer to act with deadly force. -- Also termed police-assisted suicide; victim- precipitated homicide. (Black’s Law Dictionary, 8th Edition, Thomson West (1999).) There is no evidence that Mr. Hayes had a desire to die at the hands of anyoneelse. B. Federal Liability Theories. In this case, respondent pursued two federalliability theories under 42 U.S.C. section 1983: (1) Fourth Amendment unreasonable seizure, and (2) Fourteenth Amendmentsubstantive due process. It is helpful to compare those federal theories to California law negligenceliability. l. Fourth Amendment Unreasonable Seizure. Federal Fourth Amendmentliability can arise under section 1983 for a shooting that amounts to an unreasonable seizure. Only the person who wasseized (or someonestandingin the seized person’s legal shoes) has standing to assert Fourth Amendment unreasonable seizureliability. In this case, the Ninth Circuit panel maj ority did not reach Fourth Amendment liability, stating that it was “unclear” whether respondent had Fourth Amendment standing. (Hayes I, supra, 638 F.3d at 692-693.) (From petitioners’ perspective, it was respondent’s burdento allege and prove that she had Fourth Amendmentstanding, and it was clear that she failed to meether burden.) Fourth Amendment liability under section 1983 is not available for negligent tactical decisions leading up to a use of physical force. (Billington v. Smith (2002) 292 F.3d 1177, 1190.) If an officer fails to exercise reasonable care, and that failure gets him into a dangerous -6- situation, his failure “will not make it unreasonable for him to use force to defend himself.” (/bid.) A plaintiff cannot “establish a Fourth Amendment violation based merely on badtactics that result in a deadly confrontation that could have been avoided.” (Ibid.) Onthe other hand, when “an officer intentionally or recklessly provokesa violent confrontation, if the provocation is an independent Fourth Amendmentviolation, [the officer] may be held liable for his otherwise defensive use of deadly force.” (/d. at 1189.) “The basis of liability for the subsequentuse offorceis the initial constitutional violation, which must be established under the Fourth Amendment’s reasonableness standard.” (Jd. at 1190.) That is not the sameas the standard of “reasonable care” undertort law. Negligent acts do not incur constitutional liability. “An officer may fail to exercise ‘reasonable care’ as a matter of tort law yetstill be a constitutionally ‘reasonable’ officer. Thus, even if an officer negligently provokes a violent response, that negligent act will not transform an otherwise reasonable subsequent use of force into a Fourth Amendmentviolation. But if... an officer intentionally or recklessly provokes a violent response, and the provocation is an independent - constitutional violation, that provocation may renderthe officer’s otherwise reasonable defensive use of force unreasonable as a matter of law. In such a case,the officer's initial unconstitutional provocation, which arises from intentionalor reckless conduct rather than mere negligence, would proximately cause the subsequentapplication of deadly force.” (/d. at 1190-1191.) 2. Fourteenth AmendmentSubstantive Due Process. Respondent also pursued federalliability under a Fourteenth Amendmentsubstantive due process theory. Suchliability can be pursued directly by survivors, and in that respect, is somewhat analogousto a wrongful death cause of action under California tort law. For officers in -7- emergency situations to be liable on a Fourteenth Amendmentsubstantive due process theory, they must have acted with a “purpose to harm” that was unrelated to legitimate law enforcement objectives. (Porter v. Osborn (9th Cir. 2008) 546 F.3d 1131, 1137.) The “purpose to harm”standardis not the sameas “deliberate indifference,” because “deliberate indifference” occurs “only whenactual deliberation is practical... .” (County of Sacramento v. Lewis (1998) 523 U.S. 833, 851; citation omitted.) “Like prison officials facing a riot, the police on an occasion calling for fast action have obligations that tend to tug against each other.” (Jd. at 853.) In urgentsituations, “a deliberate indifference standard does not adequately capture the importance of such competing obligations. ...” (Jd. at 852; citation omitted.) In fast-evolving situations, the “purpose to harm” standard applies, not the “deliberate indifference” standard. (Jd. at 853- 854.) Officers do not act with purpose to harm that is unrelated to law enforcement objectives when they respond to an emergencyin progress. (See Bingue v. Prunchak (9th Cir. 2008) 512 F.3d 1169, 1177.) Denial of substantive due process “is to be tested by an appraisalofthe totality of . facts in a given case.” (County ofSacramento v. Lewis, supra, 523 U.S.at 850; citation omitted.) “(Liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” (Id. at 849; citations omitted.) Standing to assert Fourteenth Amendmentsubstantive due process liability is analogous to state law wrongful death standing, and therefore broader than Fourth Amendmentstanding. Respondent had standing on that claim, and the Ninth Circuit affirmed summary judgmentfor petitioners. (Hayes I, supra, 638 F.3d at 693-694.) C. California Tort Liability. In this case, respondent pleaded both federal and state law causes of action based on the samefacts and injury. That practice is not uncommon in law enforcementcivilliability cases. Federal causes ofaction are always a claimant’s first priority, due to availability of attorneys’ fees under 42 U.S.C. section 1988. A claimant cannot be compensated twice for the same facts and injury (once under federal law and once under California law), so California law causes of action seldom assume independent importance in a given case unless(or until) federal liability fails. For example, California law causesofaction are sometimes invoked to justify a secondbite at the litigation apple when federalclaims fail to survive summary judgmentor jury verdict. 1. California Intermediate Appellate Opinions. In recent years, this Court has seldom addressed law enforcement negligenceliability in the context of harmsdirectly inflicted by officers on targeted individuals. On the other hand, California intermediate appellate courts have faced such issues frequently, resulting in a well-developed body of recent case law. The clear trend has been towards judging law enforcement uses of force during emergencies for reasonableness under the totality of circumstances, rather than burdening juries with divergent state and federal liability standards for judging the sameultimate injury. a. Reasonableness Under Totality of Circumstances. “Unlike private citizens, police officers act under color of law to protect the public interest. They are charged with acting affirmatively and using force as part of their duties... .” (Edson v. City ofAnaheim (1998) 63 Cal.App.4th 1269, 1273; citation omitted.) A plaintiff must show that a law enforcementofficer’s use of force was unreasonable underthe totality of the circumstances. (/d. at 1274; see also, Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 349-350 [reasonableness ofpeace officer’s use of force under federal law defeated state law battery claim].) Equally important, a police officer must have control over the manner and means of makinganarrest or detention. The interests of the commonweal happily coincide here with sound logic. Both dictate that “[t]he calculus of reasonableness must embody allowancefor the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amountof force that is necessary in a particularsituation. (Edson v. City ofAnaheim, supra, 63 Cal.App.4th at 1273; citation omitted.) “We share the view . . . that ‘the officer in the first instance is the judge of the manner and meansto be taken in making an arrest. Unless a plaintiff can show that unnecessary force was used, courts will protect the officer.’” (Edson v. City ofAnaheim, supra, 63 Cal.App.4th at 1274; citation omitted.) In recent years, California appellate courts have declined to recognize separateliability standards for federal and state claimsarising from the samefacts and resulting in the sameinjuries. See, e.g., Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1102-1103; Susag v. City ofLake Forest (2002) 94 Cal.App.4th 1401, 1412-1413 [unsound to distinguish between Section 1983 conduct and state law claimsarising from the same alleged misconduct].) Relying on Edson, this Court agreed that the standard for judging the reasonablenessofan officer’s actions ought to be the same underboth federal and state law. In Yount v. City ofSacramento (2008) 43 Cal.4th 885, this Court reviewed the claim of a suspect accidentally shot by an officer who mistakenly drew his service weapon instead of his Taser: [W]e cannot think of a reason to distinguish between section 1983 anda state tort claim arising from the same alleged misconductand,as stated above, the parties offer none. -10- Section 1983 ‘creates a species oftort liability’ [citation omitted] and has been described as ‘the federal counterpart of state battery or wrongful death actions.’ (Susag v. City of Lake Forest, supra, 94 Cal.App.4th at p. 1413.) Indeed, Yount’s commonlaw battery cause ofaction, like his section 1983 claim, requires proof that Officer Shrum used unreasonable force. (Id. at 902, citing Edson v. City ofAnaheim, supra, 63 Cal.App.4th at 1273-1274.) . b. Privilege. A law enforcementofficer’s use of force may be analyzed for privilege under California law: Unlike private citizens, police officers act under color of law to protect the public interest. They are charged with acting affirmatively and using force as part of their duties, because: “the right to makeanarrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereofto effect it.” (Graham v. Connor 490 U.S. 386, 396 [...] (1989). Theyare, in short, not similarly situated to the ordinary battery defendant and need not be treated the same.In these cases, then, “. . . the defendantpolice officer is in the exercise of the privilege of protecting the public peace and order [and] heis entitled to the even greater use of force than might be in the same circumstances required for self-defense.” (Edsonv. City ofAnaheim, supra, 63 Cal.App.4th at 1273; citation omitted.) When(as here) a plaintiff has joined federal and state theories in the same action based on the samefacts and injury, it makes sense for jurors to look for guidance to the same standard. The federal practice is all the more significant because plaintiffs sometimes join federal and state claims against police defendants,either in federal or state court. [Citations omitted.} To avoid jury confusion and to ease judicial administration, it makes sense to require plaintiff to prove unreasonable force on both claims. California courts in such -ll- cases havearticulated the same concernsthat underlie our decision today ....” (Edison v. City ofAnaheim, supra, 63 Cal.App.4" at 1274.) A defensive homicide is justifiable and privileged under Penal Code section 197. The privilege applies not only to the person defended against, butalso to that person’s heirs and beneficiaries. The family membersofthe person defended against cannot pursue a claim for damagesthat the person defended against could not have pursued. In our view,the rule is simply a recognition that an act resulting in justifiable homicide as defined by Penal Code section 197is, in legal effect, a privileged act. A privileged act is generally defined as one that would ordinarily be tortious, but which, under the circumstances, does not subject the actorto liability. (Rest. 2d Torts, §§ 10, 890; 5 Witkin, Summary of Cal. Law (9th ed. 1988) § 278, p. 360; Prosser & Keeton, The Law ofTorts (Sth ed. 1984) § 16, pp. 108-109.) (Gilmore v. Superior Court (1991) 230 Cal.App.3d 416, 420-421.) Citing Gilmore, this Court subsequently decided in Horwichv. Superior Court (1999) 21 Cal.4th 272, that if the force used wasprivileged as against a claim that would have been brought by the decedent, that same privilege bars a claim brought by the decedent’s relatives: The defendant can oweno greater duty to the heirs than to the decedent; thus the premise of any wrongful death action would fail at the outset. Similarly, when the defendant has beenjustified in the use of deadly force against the decedent, the privileged nature of the conductis a defenseto all civil liability regardless of the plaintiffs status. (See, e.g., Gilmore v. Superior Court (1991) 230 Cal.App.3d 416, 420- 421 [281 Cal. Rptr. 343]. (Horwich v. Superior Court, supra, 21 Cal.4th at 285.) Under California law, privilege defeats liability under anytort theory, including negligence. “A privileged act is by definition one for -12- whichthe actor is absolved of any tort liability, whether premised on the theory of negligence or of intent.” (See, e.g., Gilmore v. Superior Court, supra, 230 Cal.App.3d at 421; citations omitted.) Thus, “if, in a particular case, the facts establish a justifiable [use of force] under the Penal Code, there is no civil liability.” id. at 422; accord Nakashima v. Takase (1935) 8 Cal.App.2d 35, 38; Brooks v. Sessagesimo (1934) 139 Cal.App. 679, 679- 681.) In the context of precluding wrongful death actions, “when the defendanthas beenjustified in the use of deadly force against the decedent, the privileged nature of the conductis a defensetoall civil liability.” (Horwich v. Superior Court, supra, 21 Cal.4th at 285.) | c. Pre-Force Tactics. In Munozv.City of UnionCity, supra, 120Cal.App4th1077,the tactical decisions of law enforcementofficers that preceded their use of force were not deemeda basis for negligenceliability. The plaintiff's expert in that case testified that unreasonable officer strategy ultimately led to use of force. (/d. at 1097.) The appellate court ruled: [T]he conduct of the police — [Corporal] Woodward’s decisions as to how to deployhis officers at the scene, the efforts madein an attempt to defuse the situation as safely as possible, and other such factors — cannot subject appellants [officers and their public entity employer] to liability. For these reasons,finding a tort duty and submitting to the jury the question of whether police decisions fell below the standard of care, waserror. (Munoz v. City of Union City, supra, 120 Cal.App.4th at 1097-1098.) “Police officers often act and react in a milieu of criminalactivity where every decision is fraught with uncertainty.” (Munoz v. City of Union City, 120 Cal.App.4th at 1096, quoting Adamsv. City ofFremont (1998) 68 Cal.App.4th 243, 270, internal quotation marks omitted.) “Protection of the physical safety of the police officers and other third parties is paramount.” (Munoz v. City of Union City, supra, 120 Cal.App.4th at 1096, quoting -13- Adamsv. City ofFremont, supra, 68 Cal.App.4th at 271, internal quotation . marks omitted.) “[T]he need to protect the overall safety of the community by encouraging law enforcementofficers to exercise their best judgmentin deciding how to deal with public safety emergencies vastly outweighs the societal value of imposingtort liability for the judgments they makein emergencysituations.” (/d.) d. Reasonableness and Pre-Force Tactics. In Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 537-538, the appellate court held that as long as an officer’s conduct fell within a range of reasonable conduct, negligence liability does not result merely because the officer did not choose the most reasonable action, or the conductleast likely to cause harm while still resulting in apprehension of a violent suspect. “There will virtually always be a range of conduct thatis reasonable.” (/d. at 537; emphasisin original.) The Brownscontendthat judicial precedent demonstrates that an officer's duty to act reasonably extends to police decisions beyond simply the decision to use deadly force, and includes police tactics and the manner of apprehending suspects. The Brownsrefer to Grudt v. City of Los Angeles, 2 Cal.3d 575, (1970), and Munoz v. Olin, supra, 24 Cal.3d 629, to demonstrate that courts may look at an “officer's entire performance... in determining negligence liability.” In both Grudt and Munozv. Olin, the Supreme Court permitted negligence claims to proceed against officers based on grounds extending beyondthe officers' use offorce. Grudt involved decisions by plainclothes officers to apprehenda victim without waiting for uniformed officers to arrive, and to tap on the victim's window with a shotgun despite being in plain clothes in a high crime areaat night. (See Grudt, supra, 2 Cal.3d at p. 587.) Munoz v. Olin involved police officers’ mistaken identification of the victim as a suspect, their failure to warn the victim before shooting him, andtheir failure to attempt other means of apprehending him. (See Munoz v. Olin, supra, 24 Cal.3d at p. 637.) -14- The Browns maintain that the rule of no negligence for the tactical decisions of law enforcement officers, announced in Munoz, supra, 120 Cal.App.4th at pages 1096-1098, and Adamsv. City ofFremont (1998) 68 Cal.App.4th 243 [ ... ], a case on which Munoz heavily relies, applies only in situations like the ones officers faced in those cases,i.e., emergencysituations (such as suicide attempts) to which police have been summonedbythe public. Here, the officers were not responding to an emergencycall from the public, but instead, the officers had initiated surveillance of a suspect and subsequently decided to makeanarrest. Weconclude that determining whether Ransweiler had a duty of reasonable care with respect to his pre-shooting tactical decisionsis irrelevant in this case because even ifwe presume that the Brownsare correct that Ransweiler could be held liable for tactical negligence, underthe facts presented in the summary judgmentproceedings, Ransweiler's conduct was objectively reasonable under the circumstances. (Brown v. Ransweiler, supra, 171 Cal.App.4th at 535-536; emphasis in _ original.) A very recent (2011) appellate opinion analyzed this Court's 1979 Munozv. Olin opinion,and rejected a claim of law enforcement negligence liability that was premised on the mannerin which law enforcement officers employed deadly force: Appellant's reliance on Munoz v. Olin (1979) 24 Cal.3d 629, is misplaced. In that case, the court explained: “‘ “[T]he actor's conduct must always be gaugedin relation to all the other material circumstances surroundingit and if such other circumstances admit of a reasonable doubt as to whether such questioned conductfalls within or without the bounds of ordinary care then such doubt must be resolved as a matter of fact rather than of law.” ’ [Citations.]” Ud. at p. 637.) In Munoz v. Olin, peace officers intentionally shot a suspected arsonist as he wasfleeing. (/d. at p. 631.) The court found a triable issue of fact regarding negligence because oneofthe peace officers shot numeroustimes in addition to failing to -15- attempt other means to apprehend the suspect. (/d. at p. 637; see also Tennessee v. Garner (1985) 471 U.S. 1, 10, [use of deadly force improper to apprehend nonviolent suspect].) This case is nothing like Munozv. Olin. Pena was not attempting to flee. Instead, he was shooting directly at officers and holding his child hostage. Whenall of the material circumstances are considered, as required by Munoz v. Olin, the only reasonable conclusionis that the officers' use of force was reasonable. (Lopez v. City ofLos Angeles (2011) 196 Cal.App.4th 675, 690-691, reh'g denied (July 1, 2011), review filed (July 26, 2011).) 2. California Supreme Court Opinions. Munoz v. Olin (1979) 24 Cal.3d 629, was cited by the Ninth Circuit panel majority asthestarting point in its California law analysis. (See Hayes I, supra, 638 F.3d at 695.) In Munoz v. Olin, this Court ruled: Considering the evidencein plaintiffs' favor to be true, the jury could have believed that Munoz spent the Friday evening in his usual mannerwith friends and went peacefully homealonghis usual alley route engaging in no criminal activity. Nothing in his background orin his activities that evening suggests an arsonist. After tapping on the window of his house on the walkway to awakenhis wife,in his usual manner, he walked into the courtyard. The two investigators came downthe quiet alley in an unmarked car. They stopped the car at the walkway where Munoz had turned and pursued him on foot. He was shotat in the courtyard. To escape the bullets he jumped over the gate and ran up the other walkway toward Alhambra. Olin followed and shot him as heran into the street where he died almost instantly. A jury taking that view ofthe facts could have found that under the circumstancesthe officers were negligent in identifying Munoz, the first man they saw in their rush, as the arsonist they had seen. Testimony andajury visit to the scene indicated that Royal Upholstery was 300 feet downthealley from the investigators’ observation point, with telephone poles andtrash receptacles in between. The jury could have found negligencein the failure adequately to warn Munoz and - 16 - to attempt other means to apprehend him,ifthey disbelieved the investigators’ testimony regardingtheir lights, siren and shouts as they drove down the alley. Munoz’ wife, who was dozing under a window very near to the walkway entrance where defendants stopped their car, heard nothing but her husband's tap and calm voice at the window,followed by shots. Neighborsalsotestified that they heard shots but no sirens or shouts. The jury also could have found negligence on Olin’s part in interpreting the situation to require shooting at Munoz though Halstead could drive around to apprehend him on Alhambra, as indeed Halsteadtestified he did. They could have found Olin negligent in the way he used his weapon underthe circumstances, particularly in view ofplaintiffs’ evidencethat he fired not just three but several bullets. (Munozv. Olin, supra, 24 Cal.3d at 636-37.) That same year, 1979, this Court decided Peterson v. City ofLong Beach (1979) 24 Cal.3d 238, addressing whether law enforcement negligenceliability could arise when officer conductis privileged under the Penal Code. The plaintiff was allowed to proceed ona negligence theory against officers who shot and killed a felony burglary suspect. Although the shooting was privileged under Penal Codesection 196, privilege was deemed trumpedbythe officers’ alleged violation of a police department tactical manual, which the Court found created a presumption of negligence pursuant to Evidence Codesection 669(a). (Peterson v. City ofLong Beach, supra, 24 Cal.3d at 247, n.8.) The Legislature subsequently enacted Evidence Code section 669.1, which declared that negligence liability could not arise from manuals that had not been formally adoptedas statute, ordinance, or agency regulation. (Evid. Code § 669.1; see Minch v. California Highway Patrol (2006) 140 Cal.App.4th 895, 907 [confirming Legislature’s intent to override Peterson]. Subsequently, this Court recognizedthat privilege may defeat negligence liability in a deadly force case. (Horwich v. Superior Court, supra, 21 Cal.4th at 285.) - -17- This Court has also analyzed the nature of the duty of care owed by law enforcementofficers when harm hasbeeninflicted by third parties rather than directlyby officers: As a general rule, one owes no duty to control the conductof another, nor to warn those endangered by such conduct. Such a duty mayarise, however,if “(a) a special relation exists between the actor and the third person which imposes a duty upon theactor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.” [Citations omitted.] Plaintiffs urge that defendantsare liable under both theories. In determining the existence of a duty of care ina given case, pertinent factors to consider include the “foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, andthe availability, cost, and prevalence of insurance for the risk involved.” [Citation omitted.] “When public agencies are involved, additional elements include ‘the extent of [the agency’s]} powers, the role imposed uponit by law and the limitations imposed uponit by budget;...’ [Citations omitted.] . (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203.) Davidson was followed by Williams v. State ofCalifornia: In Davidson wereferred to Professor Van Alstyne's summary of the problem in California Government Tort Liability Practice (Cont.Ed.Bar 1980) section 2.65: “Some of the cases represent an unnecessary effort to categorize the acts or omissions in question as immune discretionary functions, when the same result could be reached on the groundthat the facts fail to show the existence of any duty owedto plaintiff or any negligence on the part ofthe police officers. [Citations omitted.] Absence of duty is a particularly -18- useful and conceptually more satisfactory rationale where, absent any ‘special relationship’ between the officers and the plaintiff, the alleged tort consists merely in police nonfeasance. [Citations omitted.]” Accordingly, we turn first to the question of duty under generalprinciples of tort law. As a rule, one has no duty to cometo the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unlessthereis somerelationship between them whichgivesrise to a duty to act. (Rest.2d Torts, § 314; 4 Witkin, Summary of Cal.Law (8th ed.) Torts, § 554, p. 2821.) Also pertinent to our discussionis the role of the volunteer who, having noinitial duty to do so, undertakes to cometo the aid of another—the “good Samaritan.” He is under a duty to exercise due care in performanceandis liableif (a) his failure to exercise such care increasesthe risk of such harm,or (b) the harm is suffered because of the other's reliance upon the undertaking. (Rest.2d Torts, § 323.) Application of these general principles in the area of law enforcement and other police activities has produced some confusion and conflict. To an extent, the concepts are muddied by widely held misconceptions concerning the duty owed by police to individual members ofthe general public. (Williams v. State ofCalifornia (1983) 34 Cal.3d 18, 23-24; fn. omitted.) This Court has not always been consistent in its view that duty must be decided before privilege (or immunity) is addressed: The issues with respect to the city are whetherthe officers owed a duty of care to plaintiff and, if so, whether the city is immunefrom liability. In Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201-203, we held that in cases posing these two questions, logic suggests that unless the first is answered in the affirmative, the second does not even arise. Nevertheless, since in this case our views on the issue of duty are highly diversified, but we are in general agreementthat the officers' conduct, if negligent, was immunized by the Government Code, we base our affirmance of the judgmentin favor of the -19- city on the latter ground—suggesting, perhaps,that the life of the law is not logic, but expedience. (Kisbey v. State ofCalifornia (1984) 36 Cal.3d 415, 418, fn. omitted.) This Court again addressed law enforcement negligence liability in the context of third-party-harm in 2001: Accordingly, we conclude that, under California law, a law enforcementofficer has a duty to exercise reasonable care for the safety of those persons whom the officer stops, and that this duty includes the obligation not to expose such personsto an unreasonable risk of injury by third parties. (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 718.) The following year, this Court addressed third-party-harm from the perspective of state-created danger and specialrelationships: It is settled that “[uJnder general negligence principles ... aperson ordinarily is obligated to exercise due care in his or her own actionsso as... not to create an unreasonable risk of injury to others .... [Citations.] It is well established ... that one's general duty to exercise due care includes the duty not to place another personin a situation in which the other person is exposed to an unreasonable risk of harm through the reasonably foreseeable conduct... of a third person. [Citations.]” [Citation omitted.] At the same time, however, past cases establish that police officers and other public security officers, like other persons, generally may not be held liable in damagesforfailing to take affirmative stepsto cometo the aid of, or prevent an injury to, another person. “As a rule, one has no duty to cometo the aid of another. A person whohas notcreateda peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.” [Citation omitted.] More specifically, “law enforcementofficers, like other members of the public, generally do not have a legal duty to cometo the aid of [another] person....” [Citation omitted.] Liability ma be imposed if an officer voluntarily assumes a duty to provide a particular level of protection, and then fails to do so [citations omitted], or if an officer undertakes affirmative acts that increase the risk of harm to the plaintiff. [Citations omitted.] As we have declared, “[a]s a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct.” [Citation omitted.] A duty to control the conduct of another or to warn persons endangered by such conduct mayarise, however, out of whatis called a “special relationship,” a concept upon which the Court of - 20 - Appeal placed considerable reliance in the present case. Such a duty mayariseif “ ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.’ ” [Citation omitted.] “ ‘This rule derives from the commonlaw's distinction between misfeasance and nonfeasance, and its reluctance to impose liability for the latter.’ ” [Citation omitted.] In most instances, these general rules bar recovery whenplaintiffs, having suffered injury from third parties who were engaged in criminal activities, claim that their injuries could have been prevented by timely assistance from a law enforcement officer. (See Williams v. State ofCalifornia, supra, 34 Cal.3d at p. 25, and cases cited; Benavidez v. San Jose Police Dept., supra, 71 Cal.App.4th at pp. 859-862,[no liability when the police responded to domestic violencecall but failed to protect victim after her subsequentcall for assistance]; Hernandez v. City ofPomona, supra, 49 Cal.App.4th at pp. 1503-1505, [person who was awareof dangerarising from his testimonyat a criminaltrial involving a gang wasnot entitled to damagesforthe failure of the police to warn the witness or supply special protection].) And the circumstance that an officer may have offered special protection on one occasion doesnot,by itself, give rise to a continuing special relationship and duty at a later date—or with other officers. [Citation omitted.] As the Court ofAppeal's disposition of plaintiffs’ seventh cause of action demonstrates, plaintiffs did not allege facts establishing that any peace officer or other nonpolicymaking employee of the county voluntarily undertook special duties to protect Eileen or to controlthe conduct of Harry on September 1, 1995, or that any officer or employee did anything on that date to induce Eileen in particular to rely upon a promise of special protection. At most, employees of the defendants county andsheriff's departmentfailed to take affirmative steps to protect Eileen. There is no indication that her peril was created by their actions. As in the Williams case, “{t]he officers did not create the peril in which plaintiff found herself; they took no affirmative action which contributed to, increased, or changed the risk which would have otherwise existed; there is no indication that they voluntarily assumed any responsibility to protect [her] ...; and there are no allegations of the requisite factors to a finding of special relationship, namely detrimental reliance by the plaintifton the officers’ conduct, [or] statements made by them which induced a false sense of security and thereby worsenedherposition.” Williamsv. State ofCalifornia, supra, 34 Cal.3d at Pp. 27-28,fn. omitted.) Nor does the complaintallege facts demonstrating that any officer engagedin an affirmative act that increased the risk of harm to Eileen. (Zelig v. County ofLos Angeles (2002) 27 Cal.4th 1112, 1128-1130.) -21- In its withdrawn opinionin this case, the Ninth Circuit panel majority stated: “The approach taken by the California Supreme Court in Hernandez conflicts sharply with the holdings of the lower appellate courts in City of Union City and Adams.” (Hayes I, supra, 638 F.3d at 696.) However, the “approach” taken by this Court in Hernandez is exemplified by the following quotation: Consistent with these principles and the factors the high court has identified, the federal court in this case did not instruct the jury to conduct someabstract or nebulous balancing of competing interests. Instead, as noted above,it instructed the jury to determine the reasonableness of the officers’ actions in light of “the totality of the circumstances at the time,” including “the severity of the crimeat issue, whetherthe plaintiff posed a reasonable threat to the safety of the officer or others, and whetherthe plaintiffwas actively resisting detention or attempting to escape.” The same consideration of the totality of the circumstances is required in determining reasonableness under California negligence law. (See Commercial Union Assur. Co. v. Pacific Gas & Elec. Co. (1934) 220 Cal. 515, 522, 31 P.2d 793 [jury's “duty” in a negligence action is to “determin[e] whether underall the facts and surrounding circumstances,” the conduct in question “wasthat ofpersons of ordinary prudence and discretion”].) Moreover, California's civil jury instructions specifically direct the jury, in determining whether police officers used unreasonable force for purposes of tort liability, to consider the same factors that the hi court has identified and that the federal court's instructions in this case set forth. (Judicial Council of Cal. Civ. Jury Instns. (2008) CACI No. 1305.) Thus, plaintiffs err in arguing that the federal and state standards of reasonablenessdiffer in that the former involves a fact finder's balancing of competing interests. (Hernandez v. City ofPomona (2009) 46 Cal.4th 501, 514.) In a footnote, this Court explained that it was not addressing duty of care, or addressing immunity: In light of our analysis and conclusion, we do not address defendants' claims that they owed no duty of care regarding their preshooting conduct and that they are immune under Penal Code section 196. We also do not consider the other immunity statutes discussed by amici curiae. (Id. at 521, fn. 18.) -22- D. Argument. Federal appellate jurists cannot agree on howto interpret this Court’s near-unanimousrecent opinion in Hernandez v. City ofPomona, supra, 46 Cal.4th 501, so clear direction from this Court is in order. (Compare the panel majority interpretation: “[t]he approach taken by the California Supreme Court inHernandez conflicts sharply with the holdings of the lower appellate courts in City of Union City and Adams,” HayesI, supra, 638 F.3d at 696, with the dissenter's interpretation: “[i]t would stand to reasonthatif the California Supreme Court was inclined to overrule the holdings ofMunoz[v. City of Union City] and Adams, it would have done so.” (Id. at 702.) The negligence identified by the Ninth Circuit panel majority consisted of the deputies’ failure to gather “all potentially available information about Hayes or request a PERT team. .. .” (Hayes I, supra, 638 F.3d at 695.) It is difficult to imagine any situation in which such omissions could be independently actionable -- in which they could independently injure anyone-- not even by inflicting emotional distress. Such omissions are only worth talking about if they allegedly resulted in the use of deadly force. Andifthat was their only alleged consequence, whyare they notpart ofthetotality of circumstances? The ultimate outcomeofthe deputies’ acts and omissionsin this case was their defensive use of deadly force. That outcome was not compelled by their failure to gather “all potentially available information about Hayes or request a PERT team... .” The outcome was compelled solely by how Mr. Hayes reacted to Deputy King’s mere presence -- approaching uninvited while clutching a big knife in his upraised rightfist. | The ability to foresee is one thing; the gift of prophesy is another. Accurately predicting Mr. Hayes’ unprovoked reaction would have required more than superhumanforesight. It is unrealistic to argue whether Mr. - 23 - Hayes may have been mentally ill, or whether he intended suicide-by-cop. Even today there is no evidence he had ever been deemed mentally ill, or that he ever genuinely intended to commit suicide. As a practical matter, he had the apparentfree will, the apparent means, and the apparent physical ability to injure or kill Deputy King within another split second. Whether he would have actually done so, no one knows. A coiled snake maystrike, or it may not. All can speculate, but no one truly knows what Mr. Hayes would have done-next. He hadfree will, and evenifhe had a plan, he could have changedhis mindin a split second. The reasonableness of a defensive use of deadly force in an emergency cannot reasonably be judged by speculating about an assailant’s state of mind. Suppose, hypothetically, that Mr. Hayes had not been in the kitchen. Suppose he had really been in the bedroom, where the deputies had been told he would be found. Suppose he had used the knife on himself and was bleeding in the bedroom,asin his earlier apparent suicide attempt. Suppose quick rescue had saved him from self-destruction, again as earlier happened. Would anyonehavecriticized the deputies for not pausing to gather “all potentially available information”or not requesting a PERT team? The allegedly-negligent omissions identified by the Ninth Circuit panel maj ority can only be deemed faulty because they were followed by a shooting. It is unreasonable to argue that the deputies should have ignored Mr. Hayes’ reported suicide attempt and abandoned him to his probable self-imposed fate, because law enforcementofficers are tasked with community caretaking and rescue functions. Using foresight without hindsight, no reasonable officer would have delayed a potential rescue simply because of the remote (but ever-present) possibility that the person to be saved might, with no provocation or advance warning whatsoever, initiate an apparently-homicidal assault. - 24 - Vv ~ CONCLUSION Noone knewatthe time (no one knows today) why Mr. Hayesacted as he did. The Ninth Circuit correctly noted that “there is no evidence that the deputies fired their weapons for any purpose other than self-defense.” (Hayes I, supra, 638 F.3d at 694.) The liability question oughtto be whethera use of deadly force is objectively reasonable underthe totality of circumstances. Law enforcementtactics that allegedly result in a use of | deadly force are unavoidably, and appropriately, part of the totality of circumstances. Noofficer facing a sudden deadly threat pauses to ponder whether federal law analyzesliability for a defensive use of deadly force differently than California law. Those individuals (and their beneficiaries) who assault officers without provocation should be financially compensated for the consequencesoftheir free-will actions only if the force used to stop them is objectively unreasonable or unprivileged underthe totality of circumstances. Law enforcementofficers should not face liability under any legal theory for an objectively reasonable or privileged use of defensive deadly force. For these reasons, petitioners request that this Court answer the Ninth Circuit's restated question as follows: “Under California negligence law, tactical conduct and decisions employed by law enforcement preceding the use of deadly forceare part of the totality of circumstances if they are claimed to have caused or contributed to the subsequent use ofdeadly force. Ifa use of deadly force is lawful underthe totality of circumstances,tactical conduct and decisions employed by law enforcement preceding the use of deadly force that are -25- claimed to have caused or contributed to the subsequent use of deadly force may notbe a basis of a separate cause of action for law enforcement negligence.” _ DATED:09/09/2011 Respectfully submitted, THOMAS E. MONTGOMERY, County Counsel py eq MORRISG. HILL, Senior Deputy Attorneys for Defendants/Appellees/Petitioners County of San Diego, Mike King, and Sue Geer E-mail: morris.hill@sdcounty.ca.gov - 26 - CERTIFICATE OF WORD COUNT (Cal. Rules of Court, rule 8.204(c)(1)) Pursuant to California Rules of Court, rule 8.204(c)(1), I certify that the text ofthis brief consists of 8,333 words as counted by the Microsoft Word 2007 word-processing program usedto generate thebrief. DATED: 09/09/2011 THOMAS E. MONTGOMERY,County Counsel By MORRISG. HILL, Senior Deputy Attorneys for Defendants/Appellees/Petitioners County of San Diego, Mike King, and Sue Geer E-mail: morris.hill@sdcounty.ca.gov -27- Proof of Service by Mail I, the undersigned, declare: I am overthe age of eighteen years and not a party to the case; Iam employedin, or am a residentof, the County of San Diego,California where the mailing occurs; and my business address is: 1600 Pacific Highway, Room 355, San Diego, California. I further declare that I am readily familiar with the business practice for collection and processing of correspondencefor mailing with the United States Postal Service; and that the correspondence shall be deposited with the United States Postal Service this same day in the ordinary course of business. On September 9, 2011, I caused to be served the following document(s): Petitioners’ Opening Brief On The Merits by placing a true copy of each documentin a separate envelope addressed to each addressee, respectively, as follows: Alvin M. Gomez,Esq. Clerk’s Office, United States Court of 853 Camino Del Mar, Suite 100 oPRealsfortheNinth Circuit Del Mar,California 92014 San Francisco, California 94103-1526 (858) 552-0000; (858) 755-3364 (fax) E-mail: amglawyers@yahoo.com (Attorney for Plaintiff/Appellant/Respondent C.H., a minor, by and through her guardian ad litem, David J. Hayes) I then sealed each envelope and, with the postage thereon fully prepaid, I placed each for deposit in the United States Postal Service, this same day, at my business address shownabove, following ordinary business practices. I declare under penalty of perjury underthe lawsofthe State of California that the foregoing is true and correct. Executed on September 9, 2011, at San Diego, California. LAURA COMETA C.H., ete. v. County of San Diego,etc., et al.; Supreme Court No. $193997; Ninth Cir. No. 09-55644; USDC No. cv-07-1738-DMS(JMA)
