Filed 8/19/13




      IN THE SUPREME COURT OF CALIFORNIA


CHELSEY HAYES, a Minor, etc.,         )
                                      )
           Plaintiff and Respondent,  )
                                      )                             S193997
           v.                         )
                                      )                      9th Cir. No. 09-55644
COUNTY OF SAN DIEGO et al.,           )
                                      )                         S.D. Cal. No.
           Defendants and Appellants. )                   3:07-cv-01738-DMS-JMA
____________________________________)


        Sheriff‟s deputies shot and killed Shane Hayes when he came toward them
with a large knife in his raised right hand. The deputies had come to the home in
response to a call from a neighbor who said she had heard screaming. When the
deputies arrived, Shane‟s girlfriend, Geri Neill, told them that earlier in the
evening, Shane had tried to kill himself. The deputies entered the house, and the
incident that led to this lawsuit then transpired.
        Shane‟s daughter brought this action in federal district court, alleging both
federal and state claims for relief. On appeal from a grant of summary judgment
for defendants, the United States Court of Appeals for the Ninth Circuit (see Cal.
Rules of Court, rule 8.548) asked us to decide a matter of state law: “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 of San Diego (9th Cir. 2011) 658 F.3d 867, 868.) In granting the
Ninth Circuit‟s request, we restated the issue as “[w]hether under California



                                           1
negligence law, liability can arise from tactical conduct and decisions employed
by law enforcement preceding the use of deadly force.” Our response, which is
based on long-established state law, is that such liability can arise if the tactical
conduct and decisions leading up to the use of deadly force show, as part of the
totality of circumstances, that the use of deadly force was unreasonable. Our task
here is limited to deciding a purely legal question; the federal courts will resolve,
as a factual matter, whether a finding of liability is appropriate on the facts
presented.
                                          I
       San Diego County Sheriff‟s Deputy Michael King arrived at Shane‟s
residence in Santee shortly after 9:00 p.m. on September 17, 2006, in response to a
neighbor‟s call. Shane‟s girlfriend, Geri Neill, met Deputy King at the front door.
Neill said that Shane had tried to kill himself earlier that evening by inhaling
exhaust fumes from his car, Shane had tried to harm himself on other occasions,
and she was concerned for his safety. She said no guns were in the house. Deputy
King did not ask whether Shane was under the influence of alcohol or drugs.
       A few minutes later, Deputy Sue Geer arrived and learned from Deputy
King that a potentially suicidal man was in the house. The two deputies entered to
determine whether Shane was a danger to himself. They were unaware that Shane
had been drinking heavily and that four months earlier he had been taken into
custody after a suicide attempt with a knife. With their guns holstered, the
deputies walked into the living room and saw Shane standing in the kitchen.
       Deputy King ordered Shane to show his hands. As Shane did so, he walked
toward the deputies, holding in his raised right hand a large knife. The deputies
simultaneously drew their guns and fired two shots each at Shane, who was then
between two and eight feet away. Shane died from the gunshot wounds.



                                              2
       Plaintiff Chelsey Hayes is Shane‟s daughter, who was 12 years old when
the shooting took place and did not observe the shooting. On September 4, 2007,
acting through a guardian ad litem, she filed in federal district court a complaint
alleging three federal law claims and two state law claims. The three federal
claims were against the County of San Diego and Deputies Geer and King,
asserting in various ways a violation of Shane‟s right under the federal
Constitution‟s Fourth Amendment “to be secure . . . against unreasonable searches
and seizures” and a violation of plaintiff‟s own right under the federal
Constitution‟s Fourteenth Amendment not to be “deprive[d of] . . . liberty . . .
without due process of law” (specifically, her liberty interest in the continuing
companionship of her father). Of the two state claims, one was against the County
of San Diego and Deputies Geer and King, alleging negligence as regards the
confrontation with Shane; the other state claim was against the County of San
Diego only, alleging negligent hiring, training, retention, and supervision of its
employees.
       The federal district court granted summary judgment in favor of defendants
on all claims. The court ruled that plaintiff had standing to assert her federal
claims, but that she could not prevail on those claims. The court noted the
agreement of all eyewitnesses that, at the time of the shooting, Shane was walking
toward the deputies while holding a large knife in a threatening manner. These
witnesses placed Shane no further than eight feet away from the deputies, and
perhaps much closer. In the federal district court‟s view, “it was objectively
reasonable for the Deputies to conclude that [Shane] posed a significant threat of
death or serious physical injury to themselves or others,” and therefore “their use
of deadly force was reasonable and did not violate the Fourth Amendment.” In
addition, the court found that the deputies‟ preshooting conduct did not “rise[] to
the level of an independent Fourth Amendment violation.” The court next rejected

                                          3
plaintiff‟s assertion that the deputies violated her due process right under the
federal Constitution‟s Fourteenth Amendment, as it found no evidence of “a
purpose to harm that was unrelated to legitimate law enforcement objectives.”
Finally, in light of its rulings as to Deputies King and Geer, the federal district
court rejected plaintiff‟s related federal claims against the County of San Diego.
       The federal district court then turned to plaintiff‟s state claims. The court
ruled as a matter of law that the deputies‟ use of deadly force against Shane was
reasonable in light of Shane‟s threatening conduct with the large knife, and that
therefore the deputies were not negligent in using such force. In rejecting
plaintiff‟s argument that the deputies negligently provoked the dangerous situation
in which the use of deadly force was justified, the federal district court ruled that
the deputies owed plaintiff no duty of care with regard to their preshooting
conduct and decisions. The court relied on two California appellate decisions:
Adams v. City of Fremont (1998) 68 Cal.App.4th 243 (Adams) and Munoz v. City
of Union City (2004) 120 Cal.App.4th 1077 (Munoz). Those two cases, in turn,
relied on this court‟s decision in Rowland v. Christian (1968) 69 Cal.2d 108
(Rowland), which set forth factors to be considered in deciding whether a
defendant owes a duty of care in a particular situation. The state Court of Appeal
in Adams applied this court‟s Rowland test and concluded that law enforcement
personnel owe no duty of care with regard to efforts they undertake to prevent a
suicide. In Munoz, the same appellate panel extended that holding, concluding
that law enforcement personnel owe no duty of care with regard to preliminary
conduct and decisions that later give rise to a dangerous situation in which the use
of deadly force is justified.
       The federal district court next considered plaintiff‟s second state claim,
which sought to hold the County of San Diego liable for negligent hiring, training,
and retention of Deputies King and Geer. Citing a state appellate decision in de

                                           4
Villers v. County of San Diego (2007) 156 Cal.App.4th 238, the federal district
court stated that plaintiff had failed to identify any statute that supported such a
theory of recovery against a governmental entity, and it therefore rejected the
claim.
         Plaintiff appealed. The Ninth Circuit issued a decision that it later
withdrew (Hayes v. County of San Diego (9th Cir. 2011) 638 F.3d 688), and then
it asked us to determine whether the state Court of Appeal decisions in Adams,
supra, 68 Cal.App.4th 243, and in Munoz, supra, 120 Cal.App.4th 1077, remain
good law in light of our later decision in Hernandez v. City of Pomona (2009) 46
Cal.4th 501 (Hernandez). (See Hayes v. County of San Diego, supra, 658 F.3d at
p. 873.)
                                          II
         In Part A of this section, we discuss the existence of a duty by peace
officers to act reasonably when using deadly force, including their duty to act
reasonably with regard to their preshooting conduct. In Parts B and C, we
summarize the two California Court of Appeal decisions on which the federal
district court relied in concluding that in regard to their preshooting conduct, the
officers here owed no duty to plaintiff, whose father was killed in the shooting. In
Part D, we discuss the applicability here of those two state appellate decisions.

         A. Existence of a Duty
         Except when otherwise provided by law, public employees in California are
statutorily liable to the same extent as private persons for injuries caused by their
acts or omissions, subject to the same defenses available to private persons. (Gov.
Code, § 820.) Also, public entities are generally liable for injuries caused by the
negligence of their employees acting in the scope of their employment. (Id.,
§ 815.2.) Finally, close relatives and dependents of a negligently killed person can



                                               5
recover damages for their loss. (Code Civ. Proc., § 377.60.) Under those state
statutes, general principles of tort law, in particular the law of negligence, govern
this case.
       “[I]n order to prove facts sufficient to support a finding of negligence, 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.” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292;
see Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.)
Thus, duty is a critical element of negligence liability.
       This court has long recognized that peace officers have a duty to act
reasonably when using deadly force. (Munoz v. Olin (1979) 24 Cal.3d 629, 634
(Olin); Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 587 (Grudt).) The
reasonableness of an officer‟s conduct is determined in light of the totality of
circumstances. (See Grudt, supra, at pp. 585-588 [police shooting case]; see also
Shin v. Ahn (2007) 42 Cal.4th 482, 499 [discussing totality-of-the-circumstances
rule, but not in the context of peace officers using deadly force]; John B. v.
Superior Court (2006) 38 Cal.4th 1177, 1191 [same]; Kahn v. East Side Union
High School Dist. (2003) 31 Cal.4th 990, 996 [same]; Commercial U.A. Co. v.
Pacific G. & E. Co. (1934) 220 Cal. 515, 522 [same].)
       Instructive here is our decision in Grudt, supra, 2 Cal.3d 575. In Grudt, a
police officer in plain clothes, carrying a double-barreled shotgun, approached a
car, possibly causing the driver to think he was being robbed or attacked. The
driver accelerated the car toward a second plainclothes officer, and then both
officers opened fire on the driver, killing him. (Id. at pp. 581-582.) This court
held that the trial court erred in barring a claim of negligence against the officers.
(Id. at pp. 585-588.) Significantly, the shooting in Grudt appeared justified if
examined in isolation, because the driver was accelerating his car toward one of

                                           6
the officers just before the shooting. Nevertheless, we concluded that the totality
of the circumstances, including the preshooting conduct of the officers, might
persuade a jury to find the shooting negligent. (Ibid.) In other words, preshooting
circumstances might show that an otherwise reasonable use of deadly force was in
fact unreasonable.
       Here, the federal district court granted summary judgment for defendants.
Applying two decisions of the California Court of Appeal, the federal district court
ruled that the officers owed plaintiff (victim Shane‟s daughter) no duty with
respect to their preshooting conduct. In other words, the court concluded that the
officers could not be held liable for the conduct plaintiff alleged: entering Shane‟s
home without making additional inquiries or seeking expert psychiatric assistance,
thus negligently provoking a dangerous situation in which the use of deadly force
against Shane was justified. Plaintiff challenged that decision on appeal to the
Ninth Circuit, which asked us to decide “[w]hether 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 of San
Diego, supra, 658 F.3d at p. 868.) We have rephrased the issue as “[w]hether
under California negligence law, liability can arise from tactical conduct and
decisions employed by law enforcement preceding the use of deadly force.” Our
reasons for rephrasing the issue follow.
       The Ninth Circuit‟s phrasing of the issue focuses in isolation on events that
preceded the shooting of Shane (“preparing, approaching, and performing a
welfare check on [a suicidal person]”), not on the shooting itself. Thus, it
implicitly divides the encounter with Shane into two parts, suggesting that
defendants here might have breached two separate duties. The first duty would be
to prepare, approach, and perform a welfare check on a suicidal person in a
reasonable manner, a duty that may or may not exist. The second duty would be

                                           7
to use deadly force in a reasonable manner, a duty we have long recognized in
California. (Olin, supra, 24 Cal.3d at p. 634; Grudt, supra, 2 Cal.3d at p. 587.)
       Here, however, the only injury plaintiff alleged is the loss of her father; she
did not allege an additional injury as a result of the conduct of law enforcement
personnel preceding her father‟s shooting. Therefore, this case involves only a
single indivisible cause of action, seeking recovery for a single wrong — the
shooting itself.
       We explained in Crowley v. Katleman (1994) 8 Cal.4th 666, 681: “[A]
„cause of action‟ is comprised of a „primary right‟ of the plaintiff, a corresponding
„primary duty‟ of the defendant, and a wrongful act by the defendant constituting a
breach of that duty. [Citation.] The most salient characteristic of a primary right
is that it is indivisible: the violation of a single primary right gives rise to but a
single cause of action. [Citation.]” (Italics added.) Although “the phrase „causes
of action‟ is often used indiscriminately . . . to mean counts which state differently
the same cause of action” (Eichler Homes of San Mateo, Inc. v. Superior Court
(1961) 55 Cal.2d 845, 847), its more precise meaning “is the right to obtain
redress for a harm suffered” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th
788, 798). “ „Even where there are multiple legal theories upon which recovery
might be predicated, one injury gives rise to only one claim for relief.‟ ” (Ibid.,
quoting Slater v. Blackwood (1975) 15 Cal.3d 791, 795, italics added.)
       Here, the one injury plaintiff alleged is the loss of her father. Thus, this
case involves a single primary right (plaintiff‟s right not to be deprived of her
father by an improper use of deadly force), which necessarily corresponds to a
single duty (the duty not to use deadly force in an improper manner), and the
breach of that duty gives rise to a single indivisible cause of action. Plaintiff‟s
many claims for relief are merely different legal and factual theories on which she
seeks to recover on that one cause of action.

                                            8
       Because plaintiff did not allege a separate injury from the preshooting
conduct of law enforcement personnel, the preshooting conduct is only relevant
here to the extent it shows, as part of the totality of circumstances, that the
shooting itself was negligent. Thus, a final determination that the shooting was
not negligent would preclude plaintiff from pursuing a separate theory of liability
based on the preshooting conduct alone. Moreover, because plaintiff did not
allege a separate preshooting injury, this case does not raise the question of what
independent duty, if any, law enforcement personnel owe with regard to their
preshooting conduct, and we have no reason here to decide that question.
       In granting the Ninth Circuit‟s request that we resolve a question of state
law, we restated the issue as “[w]hether under California negligence law, liability
can arise from tactical conduct and decisions employed by law enforcement
preceding the use of deadly force.” Through that restatement, we sought to avoid
any misleading reference to a separate preshooting duty (not at issue here), and we
put the focus on whether liability for the unreasonable use of deadly force by a
peace officer can be based on preshooting conduct.
       Here, the federal district court ruled (based on two California appellate
decisions — Adams, supra, 68 Cal.App.4th 243, and Munoz, supra, 120
Cal.App.4th 1077) that the sheriff‟s deputies owed plaintiff no duty of care with
regard to their preshooting conduct, and therefore that they could not be held liable
for negligently provoking a dangerous situation in which the use of deadly force
was then justified. That conclusion overlooks the long-established principle of
California negligence law that the reasonableness of a peace officer‟s conduct
must be determined in light of the totality of circumstances. (See Grudt, supra, 2
Cal.3d at pp. 585-588 [police shooting case]; see also Shin v. Ahn, supra, 42
Cal.4th at p. 499; John B. v. Superior Court, supra, 38 Cal.4th at p. 1191; Kahn v.
East Side Union High School Dist., supra, 31 Cal.4th at p. 996; Commercial U.A.

                                           9
Co. v. Pacific G. & E. Co., supra, 220 Cal. at p. 522.) Moreover, our holding in
Grudt clarifies that preshooting conduct is included in the totality of circumstances
surrounding an officer‟s use of deadly force, and therefore the officer‟s duty to act
reasonably when using deadly force extends to preshooting conduct. (Grudt, at
pp. 585-588.) But in a case like this one, where the preshooting conduct did not
cause the plaintiff any injury independent of the injury resulting from the shooting,
the reasonableness of the officers‟ preshooting conduct should not be considered
in isolation. Rather, it should be considered in relation to the question whether the
officers‟ ultimate use of deadly force was reasonable.
       Also, as the nation‟s high court has observed, “[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.” (Graham v. Connor
(1989) 490 U.S. 386, 396.) In addition, “[a]s long as an officer‟s conduct falls
within the range of conduct that is reasonable under the circumstances, there is no
requirement that he or she choose the „most reasonable‟ action or the conduct that
is the least likely to cause harm and at the same time the most likely to result in the
successful apprehension of a violent suspect, in order to avoid liability for
negligence.” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 537-538.)
Although preshooting conduct is included in the totality of circumstances, we do
not want to suggest that a particular preshooting protocol (such as a background
check or consultation with psychiatric experts) is always required. Law
enforcement personnel have a degree of discretion as to how they choose to
address a particular situation. Summary judgment is appropriate when the trial
court determines that, viewing the facts most favorably to the plaintiff, no
reasonable juror could find negligence. (See Hernandez, supra, 46 Cal.4th at
p. 521.)



                                          10
       Here, in granting summary judgment for defendants, the federal district
court ruled that the two sheriff‟s deputies owed plaintiff no duty of care with
regard to their preshooting conduct. Because that court‟s analysis focused on two
California Court of Appeal decisions — Adams, supra, 68 Cal.App.4th 243, and
Munoz, supra, 120 Cal.App.4th 1077 — we discuss those cases in detail.

       B. Adams
       Adams, supra, 68 Cal.App.4th 243, involved a person who was suicidal.
Patrick Adams, who lived in Fremont in Alameda County, suffered from periodic
bouts of depression and became belligerent when he drank hard liquor. (Id. at
p. 249.) One evening, Patrick lost his temper and pushed his wife to the floor.
(Ibid.) The wife telephoned her daughter, who came to the house. When the
daughter heard Patrick discharge a firearm, she went to a neighbor‟s house and
telephoned the police. (Id. at p. 250.)
       Several officers, with weapons drawn, entered the Adams home. They later
discovered Patrick crouched in the bushes in the backyard. Patrick was aiming a
gun at his own chest. He refused to put down the gun and told the officers to leave
him alone. (Adams, supra, 68 Cal.App.4th at pp. 251-253.) The officers sought
cover. Several officers aimed guns at Patrick, and two officers approached Patrick
with a barking police dog. (Id. at pp. 252-253.) When one of the officers, a
trained negotiator, began talking to Patrick, he told her to leave and became angry.
(Id. at pp. 253-254.) The officers then heard Patrick discharge his gun. Believing
that Patrick had fired at them, several police officers fired back. As it turned out,
Patrick had shot at himself, not at the officers. Although Patrick‟s body had a
number of bullet wounds, it was a single self-inflicted wound, which had
penetrated the heart and liver, that was fatal. The self-inflicted wound was from




                                          11
the initial shot, fired by Patrick, that led the police to return fire. (Id. at p. 262, fn.
16.)
       Patrick‟s wife and daughter sued the City of Fremont and various police
officers, alleging negligence, wrongful death, and certain intentional torts.
(Adams, supra, 68 Cal.App.4th at p. 249.) The jury awarded damages to the
plaintiffs. (Id. at pp. 259-260.) Answers to special interrogatories indicated that
the jury based its finding of police negligence on the events leading up to the
shooting, not on the actual shooting itself. (Id. at p. 260.)
       A divided panel of the California Court of Appeal reversed the judgment
for the plaintiffs in Adams. On the issue of negligence, the court concluded that
the police officers owed the plaintiffs no duty of care with respect to their
preshooting efforts to resolve the situation. (Adams, supra, 68 Cal.App.4th at
p. 276.) In reaching that conclusion, the court applied the test set forth in
Rowland, supra, 69 Cal.2d 108, in which we discussed exceptions “to the general
principle that a person is liable for injuries caused by his failure to exercise
reasonable care in the circumstances.” (Id. at p. 112.) We said: “A departure
from this fundamental principle involves the balancing of a number of
considerations” including “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, and the availability, cost, and
prevalence of insurance for the risk involved. [Citations.]” (Id. at pp. 112-113.)
       On foreseeability, the California Court of Appeal in Adams acknowledged
that Patrick‟s death was a foreseeable outcome of the officers‟ preshooting
conduct, adding that in the “highly charged, volatile situation . . . almost any result

                                            12
was foreseeable with the benefit of hindsight.” (Adams, supra, 68 Cal.App.4th at
p. 269.) The court also noted that the link between the police officers‟ preshooting
conduct and Patrick‟s decision to end his life by shooting himself in the heart was
“indirect and inferential.” (Ibid.)
       On moral blame, Adams concluded there was none associated with the
officers‟ preshooting conduct. No evidence existed that the officers planned to
precipitate Patrick‟s suicide, knew it would ensue, or acted with bad faith or
reckless indifference. (Adams, supra, 68 Cal.App.4th at pp. 270-271.)
       On the policy of preventing future harm, the burden on law enforcement
personnel, and the consequences to the community, Adams said that in a suicide
situation, peace officers are appropriately concerned primarily with the public‟s
safety and their own safety, and secondarily with the safety of the person
threatening suicide. (Adams, supra, 68 Cal.App.4th at p. 272.)
       A balancing of the various considerations, Adams concluded, militated
against imposing a legal duty on peace officers to prevent a threatened suicide
from being carried out. (Adams, supra, 68 Cal.App.4th at p. 276.) Citing our
decision in Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, which applied
the Rowland test but also deemed relevant “the social value” of the specific goal,
if any, that the defendant was seeking to advance (Parsons, at p. 473, citing
Rowland, supra, 69 Cal.2d at pp. 112-113), Adams noted the “extremely high”
social value of protecting the lives of peace officers involved in a standoff with an
armed individual. (Adams, supra, at p. 276.) Having concluded that the
defendants had no duty to prevent Patrick‟s suicide, Adams then reversed the
judgment in the plaintiffs‟ favor.




                                         13
       C. Munoz
       Munoz, supra, 120 Cal.App.4th 1077, involved a person who, as discussed
later, was threatening her family members with a knife. Jessie Amaya went to his
daughter Lucilla Amaya‟s home in Union City, Alameda County, after learning
from his wife that Lucilla was hallucinating. (Id. at p. 1083.) When Jessie saw
Lucilla, she was holding a knife in each hand and claiming that someone was in
the back room. (Ibid.) Jessie checked the room but found no one. (Ibid.) Lucilla
refused to put down the knives, and she would not permit Jessie to leave the
house. Lucilla‟s daughter, Yvette, was also in the house, and Lucilla told her to
stay away. Yvette then went to her room. (Ibid.) Meanwhile, Lucilla‟s brother,
J.J. Amaya, had arrived at the house and was standing outside. After talking on
the telephone to his father, who was inside the house, J.J. called the police. (Id. at
pp. 1083-1084.) He said that his sister had been a “5150” in the past (referring to
72-hour psychiatric custody under Cal. Welf. & Inst. Code, § 5150), and that she
had a knife. He expressed concern that she would harm herself, her father, or her
daughter. (Munoz, at p. 1084.)
       When officers arrived, J.J. again told them that Lucilla was agitated and had
a knife, and that he was worried about his father‟s safety inside the house.
(Munoz, supra, 120 Cal.App.4th at p. 1085.) He also said that his sister might be
under the influence of methamphetamine. (Id. at p. 1086.) The officers saw
Lucilla standing in the front doorway. She had a knife in one hand. The other
hand was not clearly visible; according to Police Corporal Tod Woodward, Lucilla
claimed to have a gun in the other hand. When Woodward approached the front
door and spoke to Lucilla, she told him to stay back. (Id. at pp. 1086-1087.)
Woodward told another officer to call for the SWAT (special weapons and tactics)
team. Woodward was concerned that Lucilla would kill her father and daughter.
He could see Lucilla‟s father and daughter in the house, and Lucilla was


                                          14
sporadically pointing the knife at her father and gesturing in a threatening manner.
(Id. at p. 1087.)
       Corporal Woodward told Lucilla‟s father and daughter to go to the back of
the house. As they did so, Lucilla began moving toward them. (Munoz, supra,
120 Cal.App.4th at p. 1087.) Woodward raised his gun and pleaded with Lucilla,
“Please don‟t, please don‟t.” (Ibid.) Lucilla continued toward her father and
daughter, thrusting with the knife. Thinking that Lucilla was going to kill her
father and daughter, Corporal Woodward shot Lucilla, killing her. (Id. at
pp. 1081, 1087.)
       Jessie Amaya, Yvette Munoz, and J.J. Amaya sued Union City, its police
department, the chief of police, and Corporal Woodward. Testimony at trial
indicated that Woodward‟s tone of voice became louder and more impatient
during the course of his conversation with Lucilla. (Munoz, supra, 120
Cal.App.4th at pp. 1089-1090.) In addition, the testimony conflicted as to whether
Lucilla had told Woodward that she had a gun. Some witnesses denied hearing
Lucilla make that statement, but other witnesses corroborated Woodward‟s
testimony that she had made the statement. (Ibid.) The jury found the defendants
liable for negligence and battery (id. at p. 1081), and the defendants appealed.
       The same panel of the California Court of Appeal that had decided Adams,
supra, 68 Cal.App.4th 243 (a suicide case), also decided Munoz (a police shooting
case), affirming the judgment in part and reversing it in part. Relevant here is the
discussion in Munoz, supra, 120 Cal.App.4th 1077, on the liability of Corporal
Woodward. (Id. at pp. 1093-1110.) Munoz described the earlier decision in
Adams as holding “that law enforcement officers are shielded from ordinary
negligence claims based on their response to public safety emergencies when
those efforts prove to be ineffective in preventing self-inflicted harm or harm
caused by third parties.” (Munoz, at p. 1097.) Munoz also noted: “Here, the focus

                                         15
is not simply on the failure of police to prevent harm, but police conduct that
directly inflicted harm. Adams does not go so far as to insulate officers in crisis
situations from liability for their own unreasonable use of deadly force.” (Munoz,
at p. 1099, italics added.) Thus, Munoz correctly recognized a factual distinction
between a suicide case (which was the type of case at issue in Adams) and a use-
of-deadly-force case (as to which this court has long held that peace officers have
a duty to act reasonably).
       But Munoz went on to say that the defendants in that case could not be held
liable for their preshooting conduct. The court said: “[I]f the jury‟s verdict was
based on the theory of liability against [Corporal] Woodward that we reject (pre-
shooting response at the scene) and was not based on the use of deadly force, we
would be compelled to reverse and remand for retrial.” (Munoz, supra, 120
Cal.App.4th at p. 1101.)
       Munoz, however, upheld the jury‟s verdict in favor of the plaintiffs, because
the jury had necessarily concluded that Corporal Woodward was negligent in his
use of deadly force, not merely in his preshooting conduct. Munoz said: “Because
one of the theories of liability against Woodward is factually and legally sustained,
the jury‟s consideration of the circumstances giving rise to the shooting,” although
improper, “was necessarily harmless.” (Munoz, supra, 120 Cal.App.4th at
p. 1101.)

       D. Applicability Here of Adams and Munoz
       As relevant here, the main distinction between the California Court of
Appeal decisions in Adams, supra, 68 Cal.App.4th 243, and in Munoz, supra, 120
Cal.App.4th 1077, is that Adams was a suicide case, whereas Munoz, like this
case, was a use-of-deadly-force case. That distinction is significant because this
court has never addressed whether peace officers owe a duty of care when, without



                                         16
any use of deadly force, they merely come to the aid of a suicidal person — the
existence of such a duty is not at issue here. This court has, however, long
recognized that peace officers have a duty to act reasonably when using deadly
force — a duty that is at issue here. (Olin, supra, 24 Cal.3d 629; Grudt, supra, 2
Cal.3d 575.)
       Here, although plaintiff‟s father, Shane, had allegedly tried to kill himself
earlier in the day, his death was not self-inflicted. Rather, holding a large knife in
his raised right hand, Shane acted in an apparently threatening manner toward the
two sheriff‟s deputies, who then simultaneously shot him. By contrast, in Adams,
supra, 68 Cal.App.4th 243, the police shooting came moments after the officers
heard Patrick fire a gunshot, which, as discovered later, penetrated his heart and
liver, resulting in his death by suicide. (See id. at p. 262, fn. 16.)
       Because Adams, supra, 68 Cal.App.4th 243, involved a death by suicide,
not a death by police shooting, the question in Adams was whether peace officers
could be held liable for conduct that turned out (with the benefit of hindsight) to
have increased Patrick‟s emotional imbalance, ultimately contributing to his
suicide. As noted earlier (see pp. 12-13, ante), Adams held that under our test in
Rowland, supra, 69 Cal.2d at pages 112-113, the police in Adams had no duty to
refrain from such conduct. Because the validity of that conclusion is not at issue
in this case, which did not involve a suicide, we express no view on that holding.
       Plaintiff‟s counsel, in briefing before this court, asserted that plaintiff‟s
father, Shane, may have been intending suicide when he approached the two
sheriff‟s deputies with a large knife raised in his right hand, thereby provoking the
deputies to shoot him. That assertion has no support in the record before us. In
any event, unlike the death by suicide in Adams, supra, 68 Cal.App.4th 243, here
Shane‟s death was not self-inflicted; rather, it was the direct result of the officers‟
use of deadly force.

                                           17
       Our case law has long recognized that peace officers have a duty to act
reasonably when using deadly force. (See Olin, supra, 24 Cal.3d 629; Grudt,
supra, 2 Cal.3d 575.) If plaintiff (Shane‟s daughter) is asserting that negligence in
the sheriff‟s deputies‟ preshooting conduct somehow caused Shane to seek his
own death at their hands (by coming at them with a large knife), that fact-based
theory falls within the totality of circumstances surrounding the shooting and can
be litigated in federal court proceedings determining the reasonableness of the
deputies‟ use of deadly force. (See Grudt, supra, 2 Cal.3d at pp. 585-588.)
       The reasonableness of the deputies‟ preshooting conduct should not be
considered in isolation, however; rather, it should be considered as part of the
totality of circumstances surrounding the fatal shooting of Shane. We perceive no
sound reason to divide plaintiff‟s cause of action artificially into a series of
decisional moments (the two deputies‟ decision not to call for a psychiatric expert
before entering Shane‟s house, their decision to enter the house, their decision to
speak to Shane, their decision to use deadly force in response to Shane‟s
apparently threatening behavior toward them with a large knife, etc.), and then to
permit plaintiff to litigate each decision in isolation, when each is part of a
continuum of circumstances surrounding a single use of deadly force by the
deputies. Any other approach would be both inefficient and confusing, and would
conflict with our past decisions on negligence. (See Grudt, supra, 2 Cal.3d at
pp. 585-588 [case involving a police shooting; the decision evaluates negligence in
light of the totality of circumstances, including the officers‟ actions preceding the
use of deadly force]; see also Kahn v. East Side Union High School Dist., supra,
31 Cal.4th at pp. 996, 1011-1013 [case involving a swimming pool accident; the
decision considers the defendant coach‟s actions during the weeks preceding the
injurious event].)



                                          18
       As we have noted (see p. 16, ante), the California Court of Appeal decision
in Munoz, supra, 120 Cal.App.4th 1077, unlike that same panel‟s earlier decision
in Adams, supra, 68 Cal.App.4th 243, was a police shooting case, not a suicide
case. (See p. 16, ante, regarding the significance of that distinction.) Therefore,
by concluding in Munoz that Corporal Woodward owed the plaintiffs in that case
no preshooting duty to act reasonably, the Court of Appeal extended its prior
holding in Adams (a suicide case) to a case involving a death directly inflicted by
the police. In doing so, the Munoz court may have been influenced by the rule that
applies to violations of the federal Constitution‟s Fourth Amendment. (See
Munoz, at p. 1102, fn. 6 [stating that federal Fourth Amend. law is “instructive”
when deciding excessive force claims].)
       Fourth Amendment law protects against an “unreasonable . . . seizure[]”
(U.S. Const., 4th Amend.) and thus tends to focus more narrowly than state tort
law on the moment when deadly force is used, placing less emphasis on
preshooting conduct (see Billington v. Smith (9th Cir. 2002) 292 F.3d 1177, 1190).
Munoz, supra, 120 Cal.App.4th 1077, did not cite Billington v. Smith, but if the
California Court of Appeal in Munoz was influenced by Fourth Amendment law in
reaching its conclusion that Corporal Woodward owed no preshooting duty of
care, it did not adequately consider the differences between federal constitutional
liability and state tort liability. “The Fourth Amendment‟s „reasonableness‟
standard is not the same as the standard of „reasonable care‟ under tort law, and
negligent acts do not incur constitutional liability.” (Billington v. Smith, at
p. 1190.) Moreover, Munoz‟s extension of Adams, supra, 68 Cal.App.4th 243,
directly conflicted with our long-standing conclusion that peace officers have a
duty to act reasonably when using deadly force, a duty that extends to the totality
of circumstances surrounding the shooting, including the officers‟ preshooting
conduct. (See pp. 6-10, ante.)

                                          19
       The Ninth Circuit relied on our decision in Hernandez, supra, 46 Cal.4th
501, in concluding that we would not be likely to agree with the holdings of the
state Court of Appeal in Adams, supra, 68 Cal.App.4th 243, and Munoz, supra,
120 Cal.App.4th 1077. Hernandez did not mention either Adams or Munoz,
although those cases involved a similar issue. Hernandez was a police shooting
case. We there considered, among other things, whether state law liability could
be based on the officers‟ preshooting conduct and decisions. We expressly did not
decide whether such a theory of liability was valid in the abstract. (Hernandez, at
p. 521, fn. 18.) Instead, we reviewed the evidentiary record and determined as a
factual matter that the officers‟ preshooting conduct in that case was not negligent.
(Id. at pp. 517-521.) The Ninth Circuit in the matter now before us, however, read
our decision in Hernandez as “strongly indicat[ing]” that we would approve
preshooting negligence as a theory of potential liability, for otherwise we would
not have found it necessary to pore so carefully over the preshooting evidence.
(Hayes v. County of San Diego, supra, 638 F.3d at p. 696.) Hence, the Ninth
Circuit concluded that we would not be likely to agree with Adams and Munoz.
(Hayes v. County of San Diego, at p. 697.)
       Certain language in Hernandez, supra, 46 Cal.4th 501, can be
misunderstood. As noted (see p. 19, ante), state negligence law, which considers
the totality of the circumstances surrounding any use of deadly force (see Grudt,
supra, 2 Cal.3d at pp. 585-588), is broader than federal Fourth Amendment law,
which tends to focus more narrowly on the moment when deadly force is used (see
Billington v. Smith, supra, 292 F.3d at p. 1190). This court‟s opinion in
Hernandez, however, can be misread as suggesting that the state and federal
standards are the same. (See Hernandez, at p. 514 [federal law requires
consideration of “ „the totality of the circumstances at the time‟ ”; “[t]he same
consideration of the totality of the circumstances is required in determining

                                         20
reasonableness under California negligence law”].) But if the state and federal
standards are the same, our Hernandez opinion should not have separately
analyzed the evidence of preshooting negligence (id., at pp. 517-521). That we
did separately analyze such evidence suggested our acknowledgment that the state
and federal standards are not the same, which we now confirm.1
                                    CONCLUSION
       Our response to the Ninth Circuit‟s question on an issue of state law, as
restated by this court, is this: Law enforcement personnel‟s tactical conduct and
decisions preceding the use of deadly force are relevant considerations under
California law in determining whether the use of deadly force gives rise to
negligence liability. Such liability can arise, for example, if the tactical conduct
and decisions show, as part of the totality of circumstances, that the use of deadly
force was unreasonable. Whether defendants here acted reasonably is not for us to
decide. Our task is limited to answering the state law question of duty that the
Ninth Circuit posed to us, a purely legal question; the factual question of any
breach of that duty is for the federal courts to resolve in later proceedings.


                                                   KENNARD, J.
WE CONCUR:
CANTIL-SAKAUYE, C.J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.


1      To the extent Munoz v. City of Union City, supra, 120 Cal.App.4th 1077, is
inconsistent with the views stated here, we disapprove it.



                                          21
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Hayes v. County of San Diego
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding XXX on request pursuant to rule 8.458, Cal. Rules of Court
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S193997
Date Filed: August 19, 2013
__________________________________________________________________________________

Court:
County:
Judge:

__________________________________________________________________________________

Counsel:

John J. Sansone and Thomas E. Montgomery, County Counsel, and Morris G. Hill, Deputy County
Counsel, for Defendants and Appellants.

Dennis J. Herrera, City Attorney (San Francisco), Joanne Hoeper, Chief Trial Deputy, and Peter J. Keith,
Deputy City Attorney, for League of California Cities and California State Association of Counties as
Amici Curiae on behalf of Defendants and Appellants.

Gomez Law Group and Alvin M. Gomez for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Morris G. Hill
Deputy County Counsel
1600 Pacific Highway, Room 355
San Diego, CA 92101-2469
(619) 531-4877

Alvin M. Gomez
Gomez Law Group
853 Camino Del Mar, Suite 100
Del Mar, CA 92014
(858) 552-0000
