When Using Deadly Force, a Deputy’s Duty to Act Reasonably Extends to His or Her Pre-Shooting Conduct

The daughter of a man shot and killed by sheriff’s deputies filed a lawsuit for negligent wrongful death.  The United States Court of Appeals for the Ninth Circuit held that a law enforcement officer’s duty to act reasonably when using deadly force extends to his or her pre-shooting conduct.  (Hayes v. County of San Diego) — F.3d —-, C.A. 9, December 2, 2013).

Deputy Mike King from the San Diego County Sheriff’s Department responded to a domestic disturbance call made by a neighbor of Shane Hayes.  When Deputy King arrived at Hayes’s home, he spoke with Hayes’s girlfriend, who told him that she and Hayes had been arguing about Hayes's attempted suicide that same day.  The girlfriend said there were no guns in the house and there had been no physical altercation but she was concerned that Hayes might harm himself.  Deputy Sue Greer arrived at the home about four minutes after Deputy King.  Concerned that Hayes might harm himself, the deputies entered the home to check on his welfare.

Upon entering the home, Deputy King saw Hayes about eight feet away and ordered Hayes to show his hands.  While taking two steps toward Deputy King, Hayes raised his hands to shoulder level and revealed a large knife.  Deputy King drew his gun and fired two shots at Hayes, who was still six to eight feet away.  Greer simultaneously drew her gun and fired two shots at Hayes.  Hayes died from his injuries.

Hayes’s daughter brought a lawsuit against Deputy King, Deputy Greer, and the County of San Diego.  A federal district court granted summary judgment in favor of the deputies and the County.  The daughter’s claim for negligent wrongful death required her to show that the defendants owed a standard of care, they breached this duty, and the breach caused her injury.  Under California law, “an officer’s lack of due care can give rise to negligence liability for the intentional shooting death of a suspect” and officers have a duty to use reasonable care when they employ deadly force.  The United States Court of Appeals for the Ninth Circuit found that when the evidence is viewed in a light most favorable to the daughter, “reasonable jurors could conclude that the deputies’ use of deadly force was not objectively reasonable” based on the failure of the deputies to ask Hayes to drop the weapon or provide other warning before firing their weapons.

The reasonableness of the use of force is determined “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”  The totality of the circumstances must be considered including the availability of less severe alternatives and the mental and emotional state of the suspect.  The court found that, considering the evidence in the light most favorable to the appellant, “Hayes’s unexpected possession of the knife alone—particularly when he had committed no crime and was confronted inside his own home—was not sufficient reason for the officers to employ deadly force.”

Although threatening an officer may justify the use of deadly force, there was no clear evidence that Hayes was threatening the deputies.  The deputies were told before they entered the house that Hayes threatened to hurt himself, not that he threatened others.  There was no evidence presented that Hayes acted erratically with the knife in the presence of the deputies.  An officer’s statement “that he fears for his safety or the safety of others is not enough” and “there must be objective factors to justify such a concern.”  The court determined that the evidence did not clearly show that Hayes threatened the deputies with the knife.

Whenever feasible, an officer must first warn a suspect that force will be used if the suspect does not comply with a warning to halt.  Here, no warning was given and it was not clear that a warning was infeasible given the fact that Hayes was still at least six feet away when he was shot.  When the evidence is viewed in a light most favorable to Hayes’s daughter, Hayes posed no clear threat at the time he was shot without warning.  The appellate court reversed the conclusion of the trial court that the “use of force was objectively reasonable as a matter of law.”

The appellate court also reversed the conclusion of the trial court “that the deputies owed no duty of reasonable care with regard to their pre-shooting conduct.”  The pre-shooting conduct of an officer “is properly ‘included in the totality of circumstances surrounding [his] use of deadly force, and therefore the officer’s duty to act reasonably when using deadly force extends to [pre-shooting] conduct.’”  The appellate court concluded Deputy Greer’s and Deputy King’s duty of reasonable care extended to their conduct before they shot Hayes.  Accordingly, the appellate court remanded the case to allow Hayes’s daughter to proceed on her claim of negligent wrongful death.


If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Mona G. Ebrahimi, Ronald J. Scholar, or Maggie W. Stern | 916.321.4500