                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 30 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


YOUNG HAN, individually and as                   No.   15-16078
successor-in-interest to decedent Joseph
Han; et al.,                                     D.C. No.
                                                 2:10-cv-00633-MCE-GGH
              Plaintiffs-Appellants,

 v.                                              MEMORANDUM*

CITY OF FOLSOM, a municipal
corporation; et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

                       Argued and Submitted April 21, 2017
                            San Francisco, California

Before: THOMAS, Chief Judge, MURGUIA, Circuit Judge, and BAYLSON,**
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Michael M. Baylson, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
      This case returns to us after a prior remand. Plaintiffs Young, Nam, and

David Han (collectively, “the Hans”) brought federal claims and state wrongful

death and negligent infliction of emotion distress claims against the City of

Folsom, the Chief of Police, and Officers Barber, Peterson, and Prociw

(collectively, “the City”) for the shooting death of Joseph Han. The district court

granted summary judgment to the City on all claims. The Hans appealed. A three-

judge panel of this Court affirmed the dismissal of the federal claims, but reversed

the dismissal of the state law wrongful death and negligent infliction of emotional

distress claims, and remanded for further proceedings in light of the California

Supreme Court’s decision in Hayes v. County of San Diego, 305 P.3d 252 (Cal.

2013). Han v. City of Folsom, 51 Fed. App’x 923 (9th Cir. 2014). On remand, the

district court granted summary judgment on the state law claims, and this appeal

followed. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and

remand. Because the parties are familiar with the facts of this case, we need not

recount them here.

                                          I

      The City contends that it was entitled to summary judgment because the

police officers owed no duty to Joseph Han and, therefore, his negligence claims

must fail. The City is incorrect. Under California law, public employees “are


                                          2
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.”

Hayes, 305 P.3d at 255; see also Cal. Gov. Code § 820. In addition, “public

entities are generally liable for injuries caused by the negligence of their employees

acting within the scope of their employment.” Id.; see also Cal. Gov. Code

§ 815.2. California applies the familiar common law elements of the tort of

negligence: a duty to use care, a breach of that duty, and a requirement that the

breach was the proximate or legal cause of the resulting injury. Id. California also

“has long recognized that peace officers have a duty to act reasonably when using

deadly force.” Id. at 256. “The reasonableness of an officer’s conduct is

determined in light of the totality of the circumstances.” Id. In police cases, as

well as others, the conduct in question “must always be gauged in relation to all the

other material circumstances surrounding it and if such other circumstances admit

of a reasonable doubt as to whether such questioned conduct falls within or without

the bounds of ordinary care such doubt must be resolved as a matter of fact rather

than of law.” Grudt v. City of Los Angeles, 468 P.2d 825, 831 (Cal. 1970) (quoting

Toschi v. Christian, 149 P.2d 848, 852 (Cal. 1944)).

      In Hayes, the California Supreme Court held that an officer’s “tactical

conduct and decisions preceding the use of deadly force are relevant considerations


                                           3
under California law in determining whether the use of deadly force gives rise to

negligence liability.” Hayes, 305 P.3d at 263. As the California Supreme Court

summarized, “peace officers have a duty to act reasonably when using deadly

force, a duty that extends to the totality of the circumstances surrounding the

shooting, including the officers’ preshooting conduct.” Id. at 262. In assessing the

standard of care, “[i]t is universally accepted that the standard of care in a

particular industry may be established by its practitioners.” Cty. of Mariposa v.

Yosemite W. Assocs., 202 Cal.App.3d 791, 806 (Ct. App. 1988); see also Grudt,

468 P.2d at 831 (error not to admit police tactical manual as evidence of standard

of care).

      In short, California recognizes that peace officers have a duty to act

reasonably when using deadly force, and reasonableness is determined in light of

the totality of the circumstances, including consideration of tactical and pre-

shooting actions.

                                           II

      Given the existence of a duty under California negligence law, and

following Hayes’ guidance that we must consider the reasonableness of the




                                            4
officer’s actions under the totality of the circumstances, the question then is

whether there are triable issues of material fact that preclude summary judgment.1

In this case, Han tendered expert evidence that the police actions were not

reasonable under the totality of the circumstances under generally accepted police

practices. The expert opined that even though the Officers were warned in advance

that Joseph was acting strangely, that he was in possession of a hunting knife, and

that his family was concerned about his well-being and his potential reaction to

police presence, “the officers failed to use reasonable and generally accepted police

practices for dealing with someone they believed was a person of diminished

capacity.” He further opined, among other matters, that the officers made

conscious choices that unreasonably escalated the situation; that the use of deadly

force was contrary to generally accepted police practices; and that the City made a


      1
        We must reject the City’s assertion, without legal support, that we are
limited to reviewing only those facts set forth in the previous panel’s memorandum
disposition and those facts summarized by the district court in its second summary
judgment order. Our remand in Han v. City of Folsom, 51 Fed. App’x 923 (9th
Cir. 2014), did not alter or limit the record before the district court, and we conduct
a de novo review of the district court’s summary judgment order, James River Ins.
Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir. 2008), which requires
consideration of the full record, not just the facts as summarized by the district
court. And, in reviewing a grant of summary judgment, an appellate court “may
examine the record de novo without relying on the lower courts’ understanding.”
Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 466 n.10 (1992).
We therefore review the full record as developed before the district court.


                                           5
conscious choice not to provide field officers with proper tactical tools and

decision making techniques. He testified that “[t]hese decisions and unreasonable

actions created the subsequent deadly force incident that resulted in Joseph Han’s

death.”

      The record also discloses genuine disputes as to material facts, such as

whether the bedroom door was open or closed when the officers approached it,

whether the officers provided a warning, whether they saw the knife, and the

position of the victim when he was shot. “Credibility determinations, the weighing

of the evidence, and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986).

      Even taking only the undisputed facts into consideration, the circumstances

in this case bear a strong resemblance to the situation in Hayes, which also

involved the fatal shooting of a knife-wielding individual.

      Given all of these considerations, the entry of summary judgment was

inappropriate in this case.



      REVERSED AND REMANDED.




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