• Fourth Amendment Excessive Force Allegations
• California State Negligence Allegations
• The Use of Deadly Force in Handling Mentally Ill Persons

California negligence law regarding the use of deadly force is broader than federal Fourth Amendment law in that the former includes in the totality of the circumstances the officer’s tactical conduct and decisions that precede, and lead up to, the actual use of force.  Such pre-use-of-force conduct and decisions are irrelevant in a federal Fourth Amendment use of force case.

Huntington Beach Police Officer Eric Esparza observed Dillan Tabares walking down a sidewalk on the morning of September 22, 2017. Although he was doing nothing illegal, Tabares caught Officer Esparza’s attention because he was wearing a sweater on a warm day, walking abnormally, and making fidgeting, flinching movements with his hands.  Tabares looked over in Officer Esparza’s direction several times, but kept walking. A former police officer who happened to be standing nearby also noted that Tabares was talking to himself and making gestures with his hands.  This person later testified he thought Tabares might have some mental health issues, but did not appear to be dangerous or threatening.  Officer Esparza decided to talk to Tabares, pulling his patrol car into a 7-Eleven convenience store parking lot and intercepting him in front of the store.  When Officer Esparza asked Tabares to stop and talk to him, Tabares told him “no,” and to leave him alone.  He continued to walk away as Officer Esparza told him “multiple times” to stop walking.  At this point, others in the area took notice of the situation, one person later testifying that Tabares had a “crazed look on his face” and “looked completely out of it.”  Another testified that Tabares looked “intimidating” and “intoxicated,” possible under the influence of drugs.  Yet a third witness also believed that Tabares might be under the influence of drugs, having “glazed over eyes.”  Finally, Tabares turned towards Officer Esparza and walked towards him in a confrontational manner with his fists clenched.  Tabares spoke to Officer Esparza loudly and aggressively.  No doubt sensing an impending confrontation, witnesses pulled out their cellphones and began recording Officer Esparza and Tabares.  With Tabares coming at him, Officer Esparza backed up and told Tabares to stop where he was.  Tabares ignored the officer’s commands, continuing to aggressively walk towards him.  Officer Esparza attempted to fend Tabares off by tasing him.  The Taser had no visible effect other than to cause Tabares to punch Officer Esparza in the face. And so the fight was on; both of them ending up wrestling on the ground.  Rather than help, observers continued to record the show on their cellphones. With Officer Esparza sitting on Tabares and punching him, Tabares tugged at the officer’s belt, causing him to believe Tabares was going for his gun. Tabares took the officer’s flashlight instead and stood up as Officer Esparza, also standing, backed away and pulled out his firearm.  Officer Esparza’s body camera turned on at this point.  (It is unexplained why it was not functioning before.)  With the two of them standing some 15 feet apart, and with Tabares’ left side facing the officer while holding the flashlight out of sight in his right hand, and after a three-second hesitation, Officer Esparza began shooting.  No warning was given.  Tabares started to stumble after the first six shots were fired.  Officer Esparza shouted twice to “get down,” and then shot Tabares a seventh time.  Tabares fell to the ground, . . . and died.  Dillan Tabares’ mother, Tiffany, later sued the officer and the City of Huntington Beach in federal court, alleging that Officer Esparza used excessive force under the Fourth Amendment.  Also alleged were state claims of battery, negligence, and a Bane Act violation (i.e., Civil Code § 52.1:  California’s equivalent to a federal 42 U.S.C. § 1983 civil suit).  The federal district court judge granted the civil defendant’s (i.e., the officer and the City of Huntington Beach) motion for summary judgment on all claims in a published decision (see Tabares v. City of Huntington Beach (C.D. Cal. July 30, 2019) 2019 U.S. Dist. LEXIS 163176.)  Plaintiff appealed on the state negligence claim only.

The Ninth Circuit Court of Appeal reversed, remanding the case back to the trial court for further proceedings.  Finding that the district court committed three reversible errors, the bulk of the Court’s discussion involves the most important of the three; i.e., the fact that the trial court “conflated” (i.e., confused) the rules for showing “negligence” under California law with those for proving a Fourth Amendment excessive force claim under federal law.  It was undisputed that granting summary judgment in favor of the civil defendants on the Fourth Amendment excessive force claim was proper under the rules for establishing “qualified immunity;” i.e., that Officer Esparza either did not use excessive force under the circumstances or, at the very least, prior case law dictating that the force used was excessive was not yet clearly established at the time.  But the rules for proving negligence under California law are different. “California negligence law regarding the use of deadly force overall is broader than federal Fourth Amendment law.”  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.” Also, however, and of particular significance, is the rule that an officer’s “tactical conduct and decisions leading up to the use of deadly force . . . , (are relevant) as part of the totality of circumstances, (in a civil plaintiff’s attempt to prove) that the use of deadly force was unreasonable.” (Hayes v. County of San Diego (2013) 57 Cal. 4th 622.) Thus, 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 a shooting might have been reasonable when considered in isolation.  In contrast, in evaluating the reasonableness of the force used under the Fourth Amendment, federal law generally focuses on the officer’s conduct at the time the force is used, with the officer’s earlier tactical conduct and decisions leading up to the use of force—whether good or bad—being irrelevant.  The Ninth Circuit therefore held that that Officer Esparza’s pre-shooting decisions were relevant to the issue of negligence, but not to the Fourth Amendment excessive force claim.  In using California’s negligence rules, the Court found that Officer Esparza’s pre-shooting decisions were such that a jury could very well find that they constituted culpable negligence.  Because the trial court erred by not recognizing the difference, using the federal Fourth Amendment standards for both, the Court reversed on this issue, remanding the case back to the trial court for a civil trial on the state negligence claims only. 

The other two errors made by the trial court—although mentioned, neither of which was discussed in any detail—involved (1) the trial judge’s failure to note that there was in fact evidence probative of the fact that Tabares exhibited symptoms of mental illness that would (or should) have been apparent to Officer Esparza, and (2) misinterpreting Ninth Circuit precedent on the issue of negligence in assessing the reasonableness of Officer Esparza’s conduct at the time of the shooting.  If I were writing this case decision, I would have put more emphasis on the mental illness issue.  It seems to be more and more common nowadays for police officers to respond to calls for assistance in handling the reporting party’s mentally disturbed spouse, parent, or child, only to have the mentally ill person grab a potential weapon and get himself shot.  A reporting party in such a case does not typically call for police assistance thinking that responding officers are going to solve the problem by killing the person with the mental issues. The Ninth Circuit in this case does in fact make note of the importance of an officer recognizing mental illness when it is a factor, and in tailoring his or her use of force accordingly, at least when it is practical to do so.  Specifically, The Court ruled that a reasonable jury in this case—in evaluating Officer Esparza’s possible negligence—could find that the officer failed to “deescalate” the situation by not following P.O.S.T. (Peace Officers Standards and Training) recommendations for the handling of mentally disturbed individuals: I.e., “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.”  Courts (or at least the Ninth Circuit) are beginning to hold officers to a higher standard when dealing with mentally ill subjects.  (See Deorle v. Rutherford (9th Cir. 2001) 272 F.3rd 1272; and Glenn v. Washington County (9th Cir. 2011) 673 F.3rd 864.)  I’m not saying that Officer Esparza had the opportunity to do this here in this case; I wasn’t there.  But it’s something a jury will likely be evaluating when deciding Officer Esparza’s possible civil liability.