• Use of deadly force and qualified immunity 
• Interference with familial relationships and “shocking the conscious” 
• Vicarious civil liability of municipalities under Monell 
• California’s Civil Code § 52.1, the Bane Act 

An officer’s use of deadly force must be objectively reasonable under the circumstances to be lawful. 

Where a suspect no longer poses an immediate threat, is not showing signs of danger or fight, an officer must cease the use deadly force. The doctrine of qualified immunity shields officers from civil liability — as long as their conduct does not violate?the clearly established statutory or constitutional rights of which a reasonable person should have known. 

Parents and children have a?Fourteenth Amendment?due process interest in the companionship and society of their children and parents, respectively. However, to challenge the denial of this due process right in a civil court, an officer’s actions must be shown to be so extreme as to have “shocked the conscious” of the court.  

Municipalities may be vicariously liable for the unconstitutional acts of their employees under the theory of “respondeat superior.” However, this theory of civil liability applies only when it is shown that the municipality had a deliberate policy, custom or practice that was the moving force behind the constitutional violation.  

California’s Bane Act (Civil Code § 52.1) authorizes a civil action against anyone who interferes, or tries to do so, by threats, intimidation or coercion, with an individual’s exercise or enjoyment of rights secured by federal or state law. 

On the afternoon of April 22, 2020, two uniformed Los Angeles Police Department officers happened upon a multi-vehicle accident at San Pedro and East 32nd streets in Los Angeles, apparently just after it occurred. As the officers were getting out of their vehicle, the car’s police radio relayed information about the accident, stating that the “suspect’s vehicle” was “black,” and that the occupant was a “male armed with a knife.” Bystanders and occupants of the vehicles involved in the accident all pointed out a male, later identified as Daniel Hernandez and who was still seated in his black pickup, as the driver who caused the accident. The officers were also told that the man had a knife and was trying to “hurt himself.” The police radio also announced that the suspect, still “inside his vehicle,” was “cutting himself.”  

The officers approached Hernandez’s smashed pickup. Hernandez began to climb out of the driver’s side window as one of the officers pulled out her firearm. The officers twice yelled to him: “Let me see your hands!”  

A shirtless Hernandez emerged from his pickup carrying what appeared to be a knife. The officer who had her gun drawn held out her other hand, signaling for him to stop, and shouted: “Stay right there!” It is unknown from this point on where the second officer was or what he was doing. Hernandez advanced toward the officer, continuing to do so as that officer yelled three times, “Drop the knife!” The officer backed up until she was standing directly in front of the patrol car. Hernandez began yelling as he continued to approach her, raising his arms by his sides to about a 45-degree angle. The officer again shouted, “Drop it!” As Hernandez continued yelling and advancing, coming to within 41 to 44 feet of the officer, still with his arms raised at a 45-degree angle, the officer fired an initial volley of two shots, causing Hernandez to fall to the ground.  

He landed on his right side, but still held the weapon with his right hand. He began to push himself up again while continuing to yell. As he got to his knees, and with the officer yelling again to “drop it,” Hernandez started to stand up. The officer fired two more shots. Hernandez fell to the ground again while still holding the weapon. As he began to roll over from his back onto his left side, the officer fired another, the fifth, shot. Hernandez placed his left elbow on the street as if to push himself up again, but collapsed. As he did so, the officer fired the sixth and final shot. The weapon — discovered to be a box cutter with two short blades — was still in his right hand. The whole incident lasted no more than 20 seconds. All six shots were fired within eight seconds. Hernandez died at the scene.  

Hernandez’s parents and minor child later filed separate 42 U.S.C. § 1983 lawsuits in federal court, alleging various constitutional violations which were eventually combined for all purposes. The plaintiffs also filed a consolidated complaint against Los Angeles, the LAPD and the officer. In combination, the various lawsuits alleged three federal claims that remained at issue in this appeal: (1) a?Fourth Amendment?excessive force claim brought against the officer by plaintiffs, acting on behalf of Hernandez’s estate; (2) a?14th Amendment?claim for interference with familial relations brought by the plaintiffs on their own behalf against all defendants; and (3) a claim under?Monell v. Department of Social Services of the City of New York (1978) 436 U.S. 658, on behalf of the estate and themselves, against the city and LAPD.  

In addition, the complaint asserted state law claims for assault, wrongful death and violation of the?Bane Act.  

The federal district (trial) court granted the civil defendants’ motion for summary judgment on all claims, thus dismissing the lawsuit. The court held that, as a matter of law, the officer (1) did not use excessive force in violation of the?Fourth Amendment?but that, even if she did, (2) she was entitled to qualified immunity. The plaintiffs appealed. 

The Ninth Circuit Court of Appeals affirmed in part and reversed in part:  

(1) Fourth Amendment Excessive Force Claim: It is a long-standing rule of law that a “police officer’s application of deadly force to restrain a subject’s movements ‘is a seizure subject to the reasonableness requirement of the?Fourth Amendment.’”?(Tennessee v, Garner (1985) 471 U.S. 1, 7.) As such, “any such use of deadly force must be ‘objectively reasonable.’”?(Graham v. Connor (1989) 490 U.S. 386, 397) In determining whether the officer’s use of deadly force in this case was “objectively reasonable,” the surrounding “relevant” circumstances must be considered. A non-exhaustive list of such circumstances includes: “(t)he relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” (See?Demarest v. City of Vallejo (9th Cir. 2022) 44 F.4th 1209, 1225, quoting?Kingsley v. Hendrickson (2015) 576 U.S. 389, 397.)  

Also, while considering these rules, the courts note that “[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.” The courts additionally must allow “for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” (Kisela v. Hughes (2018) 584 U.S. 100, 103.) With these guidelines in mind, the court here agreed with the trial court that the officer’s initial use of force (the first two shots) was reasonable “as a matter of law” as Hernandez “posed an immediate threat to the safety of the officers or others.”  

It is also relevant that Hernandez ignored the officer’s commands to “stay right there,” as he continued to advance while brandishing what the officer believed at the time to be a knife. Hernandez dropped to the ground upon being shot twice, but did not remain there. As he attempted to get back onto his feet, still holding the weapon, the officer initiated a second, two-shot volley. The court found that because Hernandez continued to ignore the officer’s commands while still armed, this second volley was also reasonable as a matter of law. The rule is that “in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” Although “terminating a?threat?doesn’t necessarily mean terminating [a]?suspect” (Zion v. County of Orange (9th Cir. 2017) 874 F.3rd 1072, 1076.), it was reasonable for the officer to believe at this point that “the ‘threat’...Hernandez posed had not yet ‘ended.’”  

But then the officer shot Hernandez two more times (shots five and six). At this point, Hernandez was on the ground, lying on his back and rolled onto his left side so that his back was toward the officer. Although still holding the weapon and still moving, he was in that position when the officer fired her fifth and sixth shots even though he had not yet shown he was physically able to get up. As noted by the court, “Hernandez was no longer an immediate threat...(The officer) should have held [her] fire unless and until [Hernandez] showed signs of danger or flight.”  

As to this use of force, therefore, the court held that a reasonable trier of fact (a civil jury) could find that shooting Hernandez these last two times was unreasonable. “On this record, the reasonableness of the fifth and sixth shots was thus a question for the trier of fact, and the district court erred in granting summary judgment on that issue.” 

(1a) Qualified Immunity: Despite ruling that the reasonableness of the last two shots was a jury issue, the court held that the officer was nonetheless entitled to “qualified immunity” on this issue, and thus entitled to dismissal of the excessive force allegations. “The doctrine of qualified immunity shields officers from civil liability so long as their conduct ‘does not violate?clearly established?statutory or constitutional rights of which a reasonable person would have known.’” (City of Tahlequah v. Bond (2021) 595 U.S. 9, 12.) In other words, there must be a clearly established precedent (a prior published case authority) under similar circumstances so that the officer is put on notice that what he or she is about to do violates the Constitution. Here, the court was unable to find any such “clearly established precedent.” As such, the court held that the officer is entitled to qualified immunity on the Fourth Amendment issue.   

(2) 14th Amendment Companionship Interests: “(P)arents have a?14th Amendment liberty interest in the companionship and society of their children.” As such, “[o]fficial conduct that ‘shocks the conscience’ in depriving parents of that interest is cognizable as a violation of (14th Amendment) due process.”?(Wilkinson v. Torres (9th Cir. 2010 610 F.3rd 546, 554.) This same reasoning has been extended to cover the converse situation of “a child’s interest in her relationship with a parent.” (Ochoa v. City of Mesa (9th Cir. 2022) 26 F.4th 1050, 1056.)  

An officer’s actions that “shock the conscious” may be shown in either of two ways. The first occurs when an officer acts with “deliberate indifference.” Or, where showing deliberate indifference is impractical under the circumstance, the “shock the conscious” element may be shown where the officer “acted with a purpose to harm without regard to legitimate law enforcement objectives.” (Zion v. County of Orange, supra, at p. 1077.)  

Under the facts of the current case, the court held that the one-second gap between the officer’s second (where there is no civil liability) and third (where potentially there is civil liability) volleys was insufficient time for the officer to reflect. Thus, there is no “deliberate indifference.” The plaintiffs, therefore, were required to show that the officer “acted with ‘a purpose to harm without regard to legitimate law enforcement objectives.’”?The court held that the plaintiffs failed to do this. In so holding, the court ruled that “[w]hether?excessive or not, the shootings served the legitimate purpose of stopping a dangerous suspect” and as such, the 14th Amendment was not violated. “Because there was no?14th Amendment?violation, the district court correctly granted summary judgment to all defendants on this claim.” 

(3) Monell Claim: Pursuant to Monell v. Department of Social Services of the City of New York, supra., municipalities are potentially vicariously liable for the unconstitutional acts of their employees under the theory of “respondeat superior.” However, “To prevail on a municipal liability claim, a plaintiff must show that the city had a deliberate policy, custom or practice that was the ‘moving force’ behind the constitutional violation he suffered.”  

In this case, the district court dismissed the plaintiffs’?Monell?claim against the city and LAPD, concluding that (1) there could be no municipal liability when there was no underlying constitutional violation, and (2) even if there was such a violation, the plaintiffs failed to provide any basis for holding the city and LAPD liable for the officer’s shooting of Hernandez. The Ninth Circuit here held that while the district court erred in its first conclusion (that the third volley fired by the officer was a constitutional violation), the second conclusion was correct, that there was no basis under Monell for holding either the city or the LAPD liable. That’s because even if a Monell claim was proper, the individual plaintiffs in this case failed to provide any legal basis for reversal of the district court’s ruling. 

(4) State Law Claims for Assault and Wrongful Death Under the Bane Act: The plaintiffs also alleged violations under state law. This involves the officer’s potential liability under California’s Civil Code, section 52.1. The Bane Act, the state equivalent to a federal 42 U.S.C. § 1983 civil suit, authorizes a civil action “against anyone who interferes, or tries to do so, by threats, intimidation, or coercion, with an individual’s exercise or enjoyment of rights secured by federal or state law.” The district?court’s sole reason for granting summary judgment to the civil defendants on these claims was its conclusion that the officer’s use of force was reasonable. But because the Ninth Circuit ruled here that the final volley of shots presented a question of reasonableness for a trier of fact, the district court erred in dismissing these state law claims on this ground. The court therefore reversed the district court’s dismissal of these claims. 

(5) Conclusion: The court therefore affirmed the district court’s grant of summary judgment to the civil defendants Los Angeles, LAPD and the officer on all of the plaintiffs’ federal claims, but reversed the district court’s summary judgment with respect to the plaintiffs’ state law claims for assault, wrongful death and violation of the?Bane Act. 

I briefed this case primarily because I’ve had requests to review as many use of force cases as I can to help law enforcement officers in their never-ending quest to gain better understanding of when they may or may not use deadly force, which could potentially rear its ugly head any time.  

So here you are, though I may have some reservations as to whether the use of deadly force in this case was really necessary (legally allowed, and when really necessary are different issues). Whatever the legal standards may be, I have often been a critic of what I believe to be the unnecessary use of deadly force. In this case, Hernandez was more than 40 feet from the officer when she made the decision to end his life (remembering that if an officer is going to shoot, they never shoot to wound, but to kill).  

I was taught to believe as a rookie cop (way back in the early ’70s) that a person with a knife can throw it at you faster than you can make the decision to shoot. I was also taught, however, that this rule of thumb is not an issue until the suspect is somewhere closer than 20 feet from you. And in the one instance in my short career as a street cop (6½ years) where I could have legally shot and killed someone who was waiving not one, but two knives in my (and my partner’s) direction while she was closer than 20 feet and in the confined parameters of a residential kitchen, both my partner and I chose not to end the life of this 17-year-old drug-crazed female, subduing her instead through the use of mace (nowadays pepper spray).  

That was a decision for which we were both severely criticized by our sergeant, but one that I still feel was the right decision under the circumstances, and one I can live with much easier than had I chosen to end her life. I did find out later that I broke her arm while physically subduing her, but that’s better than killing her.  

The bottom line here is that I’m not convinced that at least morally, shooting and killing Danield Hernandez was necessary even if it was legal, at least until he got a lot closer and all other alternatives (the readily available pepper spray or stun gun) had been ruled out. On this issue, I await your cards and letters.  

Interestingly, the court makes no mention of Penal Code § 835a (Amended?Stats 2019 ch 170 § 2 (AB 392), effective January 1, 2020, four months before Hernandez was shot and killed), where under subd. (a)(2), the standard for when the use of deadly force is lawful has been legislatively changed from one of “reasonableness” (see Graham v. Connor, supra, at pp. 396-397.) to “when necessary in defense of human life.” Even if the Legislature’s attempt to provide for an arguably higher threshold does not legally require us to abandon the constitutional standard, as set forth in Graham, it is one that California law enforcement officers should at the very least think about.  

**UPDATE FROM ROBERT PHILLIPS**

July 22, 2024

I previously briefed this “use of deadly force” case (See California Legal Update, Vol. 29, #7; July 1, 2024), where I questioned the need to use deadly force by an officer confronted by a man apparently armed with a knife (turned out to be a boxcutter) who was still over 40 feet away from the officer, aggressively approaching her, when she shot him six times. My suggestion that the officer may have shot the deceased too quickly brought forth a number of comments—pro and con—from you readers. Note that this case has been scheduled for rehearing before an en banc panel (11 justices) of the Ninth Circuit. It is certainly a subject that deserves some further evaluation.

Publisher Note: For those interested in reviewing the bodycam recording of the officer-involved shooting, please click here (Viewer discretion is advised as the video content may contain graphic or violent imagery).