                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 CHELSEY HAYES, a minor by and                       No. 09-55644
 through her guardian ad litem,
                  Plaintiff-Appellant,                 D.C. No.
                                                    3:07-cv-01738-
                      v.                              DMS-JMA

 COUNTY OF SAN DIEGO, DBA San
 Diego County Sheriff’s Department;                   ORDER
 SUE GEER; MIKE KING,                               DISSOLVING
              Defendants-Appellees.                  STAY and
                                                      OPINION


         Appeal from the United States District Court
            for the Southern District of California
          Dana M. Sabraw, District Judge, Presiding

                    Argued and Submitted
              June 9, 2010—Pasadena, California

                     Filed December 2, 2013

   Before: Alfred T. Goodwin and Johnnie B. Rawlinson,
  Circuit Judges, and Algenon L. Marbley, District Judge.*




   *
     The Honorable Algenon L. Marbley, District Judge for the U.S.
District Court for the Southern District of Ohio, sitting by designation.
2              HAYES V. COUNTY OF SAN DIEGO

                           Order;
                Opinion by Judge Goodwin;
      Partial Concurrence and Partial Dissent by Judge
                        Rawlinson


                           SUMMARY**


                            Civil Rights

    The panel dissolved a previously entered stay and
affirmed in part and reversed in part the district court’s
summary judgment and remanded in an action brought under
42 U.S.C. § 1983 and state law in which plaintiff alleged
violations of her deceased father’s Fourth Amendment rights
and her own Fourteenth Amendment rights after Sheriff’s
deputies shot and killed the father during a response to a
domestic disturbance call.

    The panel reversed the district court’s finding that
plaintiff had standing to assert survival claims related to her
father’s Fourth Amendment rights, noting that plaintiff failed
to allege that she was her father’s personal representative or
successor in interest. The panel remanded for further
proceedings on that issue, including whether plaintiff had
standing to assert a claim under Monell v. Department of
Social Services, 436 U.S. 658 (1978), against the County on
this basis.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              HAYES V. COUNTY OF SAN DIEGO                     3

    The panel affirmed the summary judgment in favor of
defendants on plaintiff’s substantive due process claim under
the Fourteenth Amendment. The panel held that in
determining whether the deputies’ actions shocked the
conscience, the district court correctly applied a purpose-to-
harm standard based on the deputies’ snap decision that the
father represented an immediate threat because he had a knife
in his hand and was walking forward. The panel held that
there was no evidence that the deputies fired their weapons
for any purpose other than self-defense. Because the panel
agreed that there was no violation of plaintiff’s rights under
the Fourteenth Amendment, it affirmed summary judgment
to the County as to any Monell claim made on this basis.

    The panel reversed the summary judgment regarding
plaintiff’s negligent wrongful death claim and remanded for
further proceedings on this claim. The panel held that seen in
the light most favorable to plaintiff, reasonable jurors could
conclude that the deputies’ use of deadly force was not
objectively reasonable and that under California law, their
duty to act reasonably extended to their pre-shooting conduct.

    Concurring in part and dissenting in part, Judge
Rawlinson stated that she agreed that plaintiff failed to
adequately support her substantive due process claim. Judge
Rawlinson disagreed with the balance of the majority opinion
because in her view the record did not raise a material issue
of fact regarding the amount of force used in this case. She
would therefore affirm in its entirety the district court’s entry
of summary judgment in favor of the defendants.
4               HAYES V. COUNTY OF SAN DIEGO

                             COUNSEL

Alvin M. Gomez, The Gomez Law Group, San Diego,
California, for Plaintiff-Appellant.

Morris G. Hill, Senior Deputy, and John J. Sansone, County
Counsel, County of San Diego, San Diego, California, for
Defendants-Appellees.


                               ORDER

     The stay in this matter is DISSOLVED, and an opinion
is filed concurrently with this order.1



                              OPINION

GOODWIN, Circuit Judge:

   On the night of September 17, 2006, San Diego County
Sheriff’s Deputies Mike King and Sue Geer shot and killed


    1
     In our original opinion, we affirmed the district court in part and
reversed in part, devoting a significant portion of our analysis to
Appellant’s negligent wrongful death claim. Hayes v. Cnty. of San Diego,
638 F.3d 688, 690, 694–701 (9th Cir. 2011). After the Appellees
requested that we certify an issue underlying that claim to the California
Supreme Court, we granted the request, withdrew our opinion, resubmitted
the case, and stayed proceedings pending that court’s final action. Hayes
v. Cnty. of San Diego, 658 F.3d 867, 868, 873 (9th Cir. 2011). Because
the California Supreme Court has now completed its final action in the
matter, Hayes v. Cnty. of San Diego, 305 P.3d 252 (Cal. 2013), we
dissolve the stay and enter this opinion.
             HAYES V. COUNTY OF SAN DIEGO                    5

Shane Hayes inside his home. After the incident, Hayes’s
minor daughter, Chelsey Hayes, sued the deputies and the
County of San Diego and asserted multiple federal claims, as
well as state claims for negligent wrongful death and
negligent hiring, training, and supervision. The district court
granted summary judgment to the deputies and the County
regarding all claims. We affirm in part, reverse in part, and
remand.

             I. FACTUAL BACKGROUND

    Deputy King arrived at Hayes’s residence at 9:12 p.m. in
response to a domestic disturbance call from a neighbor who
had heard screaming coming from the house. Geri Neill,
Hayes’s girlfriend and the owner of the house, spoke with
Deputy King at the front door. During a three-minute
conversation, Neill advised Deputy King that she and Hayes
had been arguing about his attempt that night to commit
suicide by inhaling exhaust fumes from his car. She told
Deputy King that there had not been a physical altercation
between them, and she was instead concerned about Hayes
harming himself, indicating that he had attempted to do so on
prior occasions. Deputy King did not ask Neill about the
manner of Hayes’s prior suicide attempts and was unaware
that he had previously stabbed himself with a knife.
Although Neill advised Deputy King that there were no guns
in the house, she made no indication that Hayes might be
armed with a knife.

    At 9:16 p.m., Deputy Geer arrived at the scene, and
Deputy King advised her that there was a subject inside the
house who was potentially suicidal. Based on the concern
that Hayes might harm himself, the deputies decided to enter
the house to check on Hayes’s welfare, a process Deputy
6            HAYES V. COUNTY OF SAN DIEGO

King described as seeing whether Hayes could “physically or
mentally care” for himself. While Neill later stated that
Hayes had been drinking heavily that night, Deputy King had
not asked Neill whether Hayes was under the influence of
drugs or alcohol. Although the deputies had been sent a
notification that Hayes was intoxicated, neither deputy was
aware of this information before entering the house.
Additionally, the deputies had not checked whether there had
been previous calls to the residence, and they were unaware
that Hayes had been taken into protective custody four
months earlier in connection with his suicide attempt
involving a knife.

    Upon entry, both deputies had their guns holstered.
Deputy King was also carrying a Taser. While moving in the
dimly lit house, Deputy King advanced ahead of Deputy Geer
and was using his sixteen-inch flashlight, which he had been
trained to use as an impact weapon.

    Once in the living room, Deputy King saw Hayes in an
adjacent kitchen area, approximately eight feet away from
him. Because Hayes’s right hand was behind his back when
Deputy King first saw him, Deputy King testified that he
ordered Hayes to “show me his hands.” While taking one to
two steps towards Deputy King, Hayes raised both his hands
to approximately shoulder level, revealing a large knife
pointed tip down in his right hand. Believing that Hayes
represented a threat to his safety, Deputy King immediately
drew his gun and fired two shots at Hayes, striking him while
he stood roughly six to eight feet away. Deputy Geer
simultaneously pulled her gun as well, firing two additional
rounds at Hayes.
             HAYES V. COUNTY OF SAN DIEGO                   7

   Deputy King testified that only four seconds elapsed
between the time he ordered Hayes to show his hands and the
time the first shot was fired. When asked why he believed
Hayes was going to continue at him with the knife, Deputy
King testified: “Because he wasn’t stopping.” Neither deputy
had ordered Hayes to stop. While stating that such a
command would have only taken “a split second,” Deputy
King testified that “I didn’t believe I had any time.”

    Neill witnessed the shooting from behind Deputy Geer
and testified that Hayes was walking towards the deputies
with the knife raised at the time the shots were fired. She
stated, however, that Hayes was not “charging” at the officers
and had a “clueless” expression on his face at the time, which
she described as “like nothing’s working upstairs.” Neill
testified that just before the shooting, Hayes had said to the
officers: “You want to take me to jail or you want to take me
to prison, go ahead.”

                     II. DISCUSSION

    Hayes’s minor daughter, Chelsey Hayes, filed suit against
the deputies and the County of San Diego, alleging claims
under 42 U.S.C. § 1983 for alleged violations of her deceased
father’s Fourth Amendment rights and her own Fourteenth
Amendment rights. The complaint also included state law
claims for negligent wrongful death and negligent hiring,
training, and supervision by the County. While finding
Chelsey Hayes had standing to assert survival claims, the
district court nonetheless granted defendants summary
judgment on all her causes of action.

   Chelsey Hayes appeals the district court’s grant of
summary judgment, except for her claim of negligent hiring,
8               HAYES V. COUNTY OF SAN DIEGO

training and supervision by the County.2 In responding,
Appellees contest the district court’s finding that Chelsey
Hayes has standing to assert survival claims based on
violations of her father’s constitutional rights.

A. STANDARD OF REVIEW

    We review issues of standing de novo. Porter v. Jones,
319 F.3d 483, 489 (9th Cir. 2003). We review the district
court’s interpretation of state law and its grant of summary
judgment de novo. In re W. States Wholesale Natural Gas
Antitrust Litig., 715 F.3d 716, 728, 745–46 (9th Cir. 2013).
“Summary judgment is inappropriate if reasonable jurors,
drawing all inferences in favor of the nonmoving party, could
return a verdict in the nonmoving party's favor.” Diaz v.
Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir.
2008).

B. APPLICATION

        1. Standing to Assert Survival Claims

     “In § 1983 actions, . . . the survivors of an individual
killed as a result of an officer’s excessive use of force may
assert a Fourth Amendment claim on that individual’s behalf
if the relevant state’s law authorizes a survival action. The
party seeking to bring a survival action bears the burden of
demonstrating that a particular state’s law authorizes a


    2
   Appellant’s opening and reply briefs fail to address the district court’s
dismissal of her negligent hiring, training and supervision claim, and we
conclude that any appeal of that dismissal is waived.                   See
Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996) (issues
not specifically raised and argued in a party’s opening brief are waived).
             HAYES V. COUNTY OF SAN DIEGO                     9

survival action and that the plaintiff meets that state’s
requirements for bringing a survival action.” Moreland v.
Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir.
1998) (internal citation omitted).

      In finding that Chelsey Hayes met California’s statutory
requirements to bring a survival action, the district court
relied upon California Code of Civil Procedure § 377.60.
The district court erred in doing so because section 377.60
relates to wrongful death actions that are based on personal
injuries resulting from the death of another, not survival
actions that are based on injuries incurred by the decedent.
See CAL. CIV. PROC. CODE § 377.60 (“A cause of action for
the death of a person caused by the wrongful act or neglect of
another may be asserted by any of the following persons
. . . .”); Schwarder v. United States, 974 F.2d 1118, 1123 n.3
(9th Cir. 1992) (“[T]he cause of action granted by Section
377 to the heirs and personal representatives of a decedent is
not derivative in character or a continuation or revival of a
cause of action existing in the decedent before his death, but
is an original and distinct cause of action granted to the heirs
and personal representatives of the decedent to recover
damages sustained by them by reason of the wrongful death
of the decedent.”) (quoting Van Sickel v. United States,
285 F.2d 87, 90 (9th Cir. 1960)); see also Davis v. Bender
Shipbuilding & Repair Co., 27 F.3d 426, 429 (9th Cir. 1994)
(“In a survival action, a decedent’s estate may recover
damages on behalf of the decedent for injuries that the
decedent has sustained. In a wrongful death action, by
comparison, the decedent’s dependents may only pursue
claims for personal injuries they have suffered as a result of
a wrongful death.”).
10            HAYES V. COUNTY OF SAN DIEGO

    California’s statutory requirements for standing to bring
a survival action are stated under California Code of Civil
Procedure § 377.30: “A cause of action that survives the
death of the person entitled to commence an action or
proceeding passes to the decedent’s successor in interest . . . ,
and an action may be commenced by the decedent’s personal
representative or, if none, by the decedent’s successor in
interest.” See also Tatum v. City & Cnty. of San Francisco,
441 F.3d 1090, 1093 n.2 (9th Cir. 2006) (“Where there is no
personal representative for the estate, the decedent’s
‘successor in interest’ may prosecute the survival action if the
person purporting to act as successor in interest satisfies the
requirements of California law . . . .”) (citing CAL. CIV. PROC.
CODE §§ 377.30, 377.32). While claiming she is the
decedent’s “sole surviving heir,” Appellant fails to allege that
she is her father’s personal representative or successor in
interest. Indeed, Appellant argues only that standing is
appropriate under section 377.60, not section 377.30. There
is no indication whether Appellant has filed the affidavit
necessary under California law to commence a survival action
as a decedent’s successor in interest, see CAL. CIV. PROC.
CODE § 377.32, or whether survival claims may now be time-
barred if Appellant has failed to do so.

    Because it is unclear on the present record whether
Appellant has standing to assert survival claims based on her
father’s constitutional rights, we do not address the district
court’s further finding of qualified immunity in relation to the
alleged Fourth A mendment violations. Accordingly, we
remand this issue to the district court for a decision whether
Chelsey Hayes has standing to assert survival claims based on
alleged violations of her father’s rights under the Fourth
Amendment.
               HAYES V. COUNTY OF SAN DIEGO                          11

     2. Alleged Fourteenth Amendment Violations

    This Circuit has recognized that a child has a
constitutionally protected liberty interest under the Fourteenth
Amendment in the “companionship and society” of her
father. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th
Cir. 1991); Moreland, 159 F.3d at 371. “Official conduct that
‘shocks the conscience’ in depriving [a child] of that interest
is cognizable as a violation of due process.” Wilkinson v.
Torres, 610 F.3d 546, 554 (9th Cir. 2010). In determining
whether excessive force shocks the conscience, the court
must first ask “whether the circumstances are such that actual
deliberation [by the officer] is practical.” Porter v. Osborn,
546 F.3d 1131, 1137 (9th Cir. 2008) (quoting Moreland,
159 F.3d at 372 (internal quotation marks omitted)). Where
actual deliberation is practical, then an officer’s ‘deliberate
indifference’ may suffice to shock the conscience. On the
other hand, where a law enforcement officer makes a snap
judgment because of an escalating situation, his conduct may
be found to shock the conscience only if he acts with a
purpose to harm unrelated to legitimate law enforcement
objectives. Wilkinson, 610 F.3d at 554.

   Here, the district court correctly applied the purpose-to-
harm standard based on the deputies’ snap decision that
Hayes represented an immediate threat. Neill had advised
Deputy King that there were no guns in the house, and the
deputies entered the residence with their guns holstered,
apparently not expecting a violent confrontation with Hayes.3


 3
    We note that Appellant makes no argument that this warrantless entry
itself violated Hayes’s Fourth Amendment rights. Indeed, such an
argument would likely be unavailing in light of the emergency exception
to the warrant requirement. See United States v. Russell, 436 F.3d 1086,
12              HAYES V. COUNTY OF SAN DIEGO

After Deputy King ordered Hayes to show his hands, Hayes
raised both his hands to approximately shoulder level,
revealing a large knife pointed tip down in his right hand.
Believing that Hayes represented a threat, both deputies
immediately drew their guns and fired at Hayes.

    The decision to use deadly force against Hayes was a snap
judgment based on the unexpected appearance of a knife in
his hand. Deputy King testified that only four seconds
elapsed between the time he ordered Hayes to show his hands
and the time the first shot was fired, stating that he did not
feel there was time to give Hayes a warning before firing.
Appellant argues that the deputies could have potentially
avoided the incident by obtaining more information about
Hayes or requesting a psychiatric emergency response team
(“PERT”) before entering the house, but that option expired
when the deputies entered the house. The decision to employ
deadly force in reaction to seeing the knife was sudden and
did not include deliberation. Cf. Wilkinson, 610 F.3d at 554
(finding purpose-to-harm standard appropriate where
“[w]ithin a matter of seconds, the situation evolved from a car
chase to a situation involving an accelerating vehicle in
dangerously close proximity to officers on foot”); Porter,
546 F.3d at 1139 (finding actual deliberation was not
practical where a five-minute altercation between the officers
and victim evolved quickly and forced the officers to make
“repeated split-second decisions”) (internal quotation marks
omitted). Accordingly, the purpose-to-harm standard is
appropriate in this case.


1094 (9th Cir. 2006) (“At issue in this case is the emergency exception to
the warrant requirement, which permits a warrantless search when officers
‘reasonably believe that a person within is in need of immediate aid.’”)
(quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978)).
             HAYES V. COUNTY OF SAN DIEGO                 13

    Appellant makes no claim that the deputies acted with a
purpose to harm unrelated to the legitimate law-enforcement
objective of defending themselves, arguing only that the
deliberate-indifference standard should have been applied.
Indeed, there is no evidence that the deputies fired their
weapons for any purpose other than self-defense.
Accordingly, Appellant failed to support her substantive due
process claim. See Wilkinson, 610 F.3d at 554–55. We
therefore affirm the summary judgment regarding the § 1983
claim based on a violation of Appellant’s rights under the
Fourteenth Amendment.

   3. Monell Claims of Municipal Liability under § 1983

    Finding no violation of either Hayes’s or Appellant’s
constitutional rights, the district court granted the County
summary judgment on all claims of municipal liability under
Monell v. Department of Social Services, 436 U.S. 658
(1978). Because we agree that there was no violation of
Appellant’s rights under the Fourteenth Amendment, we
affirm summary judgment to the County as to any Monell
claim made on this basis. See Van Ort v. Estate of Stanewich,
92 F.3d 831, 835–36 (9th Cir. 1996) (noting that a
constitutional violation is required to support Monell
liability).

    As noted, however, we have declined to address the
district court’s decision regarding alleged violations of
Hayes’s Fourth Amendment rights because it is unclear that
Appellant has standing to assert such survival claims.
Accordingly, we remand Appellant’s Monell claim based on
alleged violations of her father’s constitutional rights,
permitting the district court to decide whether Chelsey Hayes
14           HAYES V. COUNTY OF SAN DIEGO

has standing to assert survival claims based on alleged
violations of her father’s rights under the Fourth Amendment.

     4. Negligent Wrongful Death

    We then turn to Appellant’s negligent wrongful death
claim. To support a claim of negligent wrongful death
against law enforcement officers, a plaintiff must establish
the standard elements of negligence: defendants owed a duty
of care; defendants breached their duty; and defendants’
breach caused plaintiff’s injury. See Wright v. City of Los
Angeles, 219 Cal. App. 3d 318, 344 (1990). The district court
considered these elements and provided two reasons for
rejecting Plaintiff’s negligent wrongful death claim.

    First, the court held that the deputies owed a duty of
reasonable care in deciding to use deadly force, but concluded
that their use of force was objectively reasonable and
therefore not negligent as a matter of law.

    Second, the court addressed Appellant’s contention that:
(1) the deputies also owed a duty of reasonable care with
respect to their conduct and decisions before the shooting;
and (2) they breached their duty by failing to gather all
potentially available information about Hayes or to request
PERT assistance before confronting him. The district court
explained that the California Supreme Court had not clearly
addressed a peace officer’s duty of reasonable care in pre-
shooting conduct; correctly proceeded to consider the then-
governing intermediate appellate authorities, see Katz v.
Children’s Hosp., 28 F.3d 1520, 1528–29 (9th Cir. 1994);
Estrella v. Brandt, 682 F.2d 814, 817 (9th Cir. 1982); and
concluded that the deputies owed no duty of reasonable care
regarding their pre-shooting conduct.
             HAYES V. COUNTY OF SAN DIEGO                    15

     Considering the evidence in the light most favorable to
Appellant, we disagree with the district court’s first
conclusion. And, with the benefit of the California Supreme
Court’s response to our certified question, we must reject the
district court’s second conclusion. See Hayes v. Cnty. of San
Diego (Hayes I), 658 F.3d 867, 868 (9th Cir. 2011)
(certifying question to California Supreme Court and
requesting decision); Hayes v. Cnty. of San Diego (Hayes II),
305 P.3d 252 (Cal. 2013) (responding to request); Hewitt v.
Joyner, 940 F.2d 1561, 1565 (9th Cir. 1991) (when
interpreting state law, a federal court is bound by the decision
of the state’s highest court). We therefore reverse and
remand for further proceedings regarding Appellant’s
negligent wrongful death claim.

       A. Viewing the evidence in the light most
          favorable to Appellant, reasonable jurors could
          conclude that the deputies’ use of deadly force
          was not objectively reasonable.

    “While breach of duty and proximate cause normally
present factual questions, the existence of a legal duty in a
given factual situation is a question of law for the courts to
determine.” Jackson v. Ryder Truck Rental, Inc., 16 Cal. App.
4th 1830, 1838 (1993) (quoting Andrews v. Wells, 204 Cal.
App. 3d 533, 538 (1988)) (internal quotation marks omitted).

     The California Supreme Court has held that “an officer’s
lack of due care can give rise to negligence liability for the
intentional shooting death of a suspect,” and that “police
officers have a duty to use reasonable care in employing
deadly force.” Munoz v. Olin, 24 Cal.3d 629, 634 (1979)
(citing Grudt v. City of Los Angeles, 2 Cal. 3d 575, 586
(1970)); Munoz v. City of Union City, 120 Cal. App. 4th
16            HAYES V. COUNTY OF SAN DIEGO

1077, 1099–1100 (2004) (citing Grudt, 2 Cal.3d 575 and
Munoz, 24 Cal.3d 629). Claims of excessive force under
California law are analyzed under the same standard of
objective reasonableness used in Fourth Amendment claims.
See In re Joseph F., 85 Cal. App. 4th 975, 989 (2000) (citing
Martinez v. Cnty. of Los Angeles, 47 Cal. App. 4th 334, 343
(1996)); see also Edson v. City of Anaheim, 63 Cal. App. 4th
1269, 1274 (1998) (noting that 42 U.S.C. § 1983 is “the
federal counterpart of state battery or wrongful death
actions”); Brown v. Ransweiler, 171 Cal. App. 4th 516, 527
n.11 (2009) (“Because federal civil rights claims of excessive
use of force are the federal counterpart to state battery and
wrongful death claims, federal cases are instructive in this
area.”).

    “The ‘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, 490 U.S. 386, 396 (1989). To do so, a
court must pay “careful attention to the facts and
circumstances of each particular case, including [1] the
severity of the crime at issue, [2] whether the suspect poses
an immediate threat to the safety of the officers or others, and
[3] whether he is actively resisting arrest or attempting to
evade arrest by flight.” Id. We also consider, under the
totality of the circumstances, the “quantum of force” used,
Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir.
2007), the availability of less severe alternatives, id. at 1054,
and the suspect’s mental and emotional state, see Deorle v.
Rutherford, 272 F.3d 1272, 1282 (9th Cir. 2001). All
determinations of unreasonable force, however, “must
embody allowance 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
                HAYES V. COUNTY OF SAN DIEGO                          17

amount of force that is necessary in a particular situation.”
Graham, 490 U.S. at 396–97.

    Although we view the evidence in the light most
favorable to Appellant in reviewing summary judgment,
Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998), we can
only consider the circumstances of which Deputies King and
Geer were aware when they employed deadly force. See
Graham, 490 U.S. at 396; Glenn v. Washington Cnty.,
673 F.3d 864, 873 n.8 (9th Cir. 2011) (Graham teaches that
“[w]e cannot consider evidence of which the officers were
unaware”). Accordingly, when analyzing the objective
reasonableness of the officers’ conduct under Graham, we
cannot consider the fact that Hayes was intoxicated or that he
had previously used a knife in harming himself.

      In considering the first and third factors under Graham,
it is undisputed that Hayes had committed no crime, and there
is no evidence suggesting that Hayes was “actively resisting
arrest or attempting to evade arrest.” Graham, 490 U.S. at
396. Taking the evidence in the light most favorable to
Appellant, Hayes appears to have been complying with
Deputy King’s order to show his hands when Hayes raised his
hands and revealed the knife. His statement that the deputies
could take him to jail further suggests his compliance at the
time. Although Hayes was walking towards the deputies, he
was not charging them, and had not been ordered to stop. He
had committed no crime and had followed all orders from the
deputies at the time he was shot.4


 4
   In Tennessee v. Garner, 471 U.S. 1, 11–12 (1985), the Supreme Court
stated a probable cause standard for determining whether a fleeing suspect
poses a threat of serious physical harm to officers or others. Although
Hayes seemed to believe he was going to be arrested, he was not
18             HAYES V. COUNTY OF SAN DIEGO

    The central issue is whether it was objectively reasonable
under the circumstances for the deputies to believe that Hayes
posed an immediate threat to their safety, warranting the
immediate use of deadly force, rather than less severe
alternatives—such as an order to stop, an order to drop the
knife, or a warning that deadly force would be used if Hayes
came any closer to the deputies.5 See Smith v. City of Hemet,
394 F.3d 689, 702 (9th Cir. 2005) (en banc) (noting that the
second factor under Graham is the “most important”)
(quoting Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994)).
Based on the undisputed fact that Hayes was moving toward
Deputy King with the knife raised, the district court found as
a matter of law that the deputies’ use of deadly force was
objectively reasonable due to the threat to the officers’ safety.

    Considering all of the evidence in the light most favorable
to the Appellant, we cannot agree. “[T]he mere fact that a
suspect possesses a weapon does not justify deadly force.”
Haugen v. Brosseau, 351 F.3d 372, 381 (9th Cir. 2003), rev’d
on other grounds, 543 U.S. 194 (2004) (citing Harris v.
Roderick, 126 F.3d 1189, 1202 (9th Cir. 1997) (holding, in
the Ruby Ridge civil case, that the FBI’s directive to kill any
armed adult male was constitutionally unreasonable even
though a United States Marshal had already been shot and
killed by one of the males)); Glenn, 673 F.3d at 872
(suspect’s mere “possession of a knife” is “not dispositive”



suspected of a crime by the deputies and was not apparently attempting to
evade them. Accordingly, this standard would not apply here.
 5
   While Deputy King was carrying a Taser, he testified that he believed
it would take between ten to fifteen seconds to unholster and use the
device, indicating that the Taser was not a viable alternative under the
circumstances.
                 HAYES V. COUNTY OF SAN DIEGO                              19

on immediate-threat issue); Curnow, 952 F.2d at 324–25
(holding that deadly force was unreasonable where the
suspect possessed a gun but was not pointing it at the officers
and was not facing the officers when they shot).
Accordingly, 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.

     On the other hand, threatening an officer with a weapon
does justify the use of deadly force. See, e.g., Smith,
394 F.3d at 704 (recognizing that “where a suspect threatens
an officer with a weapon such as a gun or a knife, the officer
is justified in using deadly force”); Reynolds v. Cnty. of San
Diego, 84 F.3d 1162, 1168 (9th Cir. 1996) (holding deadly
force reasonable where suspect, who was behaving
erratically, swung a knife at an officer), overruled on other
grounds by Acri v. Varian Assocs., Inc., 114 F.3d 999 (9th
Cir. 1997).6 There is no clear evidence, however, that Hayes


 6
    In suggesting that Deputy King had “probable cause to believe that his
life was in danger,” the partial dissent mistakenly equates the facts found
in Reynolds with those here, ignoring the significant differences between
the two situations. In Reynolds, a man was “behaving in a strange manner”
outside a gas station, and wielding a knife. 84 F.3d at 1164. An officer
ordered the man to drop the knife multiple times, but when the officer
attempted to restrain him, the man made a “sudden” swing at the officer
with the knife. Id. at 1164–65. This court found the suspect’s actions
constituted a direct threat to the officer’s life, justifying the officer’s use
of deadly force. Id. at 1170. Here, the evidence suggesting that Hayes
presented an immediate threat to officer safety is unclear, raising a greater
question regarding the reasonableness of the officers’ actions, as
compared to the officer in Reynolds. On this record, Hayes was standing
in his own kitchen, eight feet away from Deputy King; Hayes was not
suspected of any crime; he was not ordered to drop the knife; he did not
swing the knife at Deputy King; and he followed all of the deputies’
20              HAYES V. COUNTY OF SAN DIEGO

was threatening the officers with the knife here. Before they
entered the house, the deputies were told that Hayes had
threatened to harm himself; they were not told that he had
threatened to harm others. Nor did the deputies witness
Hayes acting erratically with the knife. Cf. Reynolds, 84 F.3d
at 1168 (finding that it was reasonable for an officer to
attempt to restrain a suspect where the suspect possessed a
knife and was acting erratically because the suspect was
perceived as a threat by others in the area).

    Deputy King indicated that it was Hayes’s movement
towards him that caused him to believe Hayes was an
immediate threat. “[A] simple statement by an officer that he
fears for his safety or the safety of others is not enough
[however]; there must be objective factors to justify such a
concern.” Deorle, 272 F.3d at 1281. Neill stated that Hayes
was not charging Deputy King and described Hayes’s
expression as “clueless” when walking towards the deputies.
As noted, Hayes had not been told to stop, nor had he been
given any indication that his actions were perceived as a
threat. Further, Hayes was still six to eight feet away from
Deputy King at the time he was shot. Accordingly, the



orders before the shooting. We agree with the partial dissent that “the
events in this case unfolded rapidly within a dimly lit, confined space.”
But the lack of clarity in these circumstances does not cause us to simply
adopt the officers’ explanation of their actions. To the contrary, a court
must determine on summary judgment whether there is any issue of
material fact that would contradict an otherwise reasonable justification
for the use of force. In finding that there remain genuine issues of material
fact regarding whether Hayes represented an immediate threat to officer
safety, we do not merely engage in a 20/20 hindsight analysis, as the
partial dissent suggests. Instead, we acknowledge the court’s limited role
at the summary judgment stage in determining objective reasonableness
under Graham.
             HAYES V. COUNTY OF SAN DIEGO                  21

present evidence does not clearly establish that Hayes was
threatening the deputies with the knife.

   Finally, it is significant that Hayes was given no warning
before the deputies shot him. As noted by the court in
Deorle:

       The absence of a warning or an order to halt is
       also a factor that influences our decision.
       Shooting a person who is making a
       disturbance because he walks in the direction
       of an officer at a steady gait with a can or
       bottle in his hand is clearly not objectively
       reasonable. Certainly it is not objectively
       reasonable to do so when the officer neither
       orders the individual to stop nor to drop the
       can or bottle, and does not even warn him that
       he will be fired upon if he fails to halt.
       Appropriate warnings comport with actual
       police practice. . . . We do not hold, however,
       that warnings are required whenever less than
       deadly force is employed. Rather, we simply
       determine that such warnings should be given,
       when feasible, if the use of force may result in
       serious injury, and that the giving of a
       warning or the failure to do so is a factor to be
       considered in applying the Graham balancing
       test.

Id. at 1283–84; see also Nelson v. City of Davis, 685 F.3d
867, 882 (9th Cir. 2012). The San Diego County Sheriff’s
Department Guidelines regarding use of force reflect the
importance of warning a suspect before using deadly force:
“In situations where any force used is capable of causing
22              HAYES V. COUNTY OF SAN DIEGO

serious injury or death, there is a requirement that, whenever
feasible, the deputy must first warn the suspect that force will
be used if there is not compliance.” While estimating that
such a warning would have taken only a “split second,”
Deputy King testified that he did not feel he had time to issue
such a warning. According to Deputy King’s own testimony,
however, Hayes was still at least six feet away from him at
the time he was shot. It is not clear that a warning in this
situation was unfeasible.

    The California Supreme Court has held that it is error for
a trial court to remove the issue of negligence from a jury
where the evidence most favorable to the plaintiff could
support a view that the force used was unreasonable. See
Grudt, 2 Cal.3d at 586–87 (holding the trial court erred in
removing the issue of negligence from the jury where the
evidence most favorable to the plaintiff could have supported
a view that Grudt, driving in a high crime area late at night
and hailed to stop by men in plain clothes, thought he was
going to be robbed, tried to elude the robbers, and was then
shot by the plainclothes officers when his car stopped at an
intersection). Seen in the light most favorable to Appellant,
Hayes was complying with Deputy King’s order when he
raised the knife and posed no clear threat at the time he was
shot without warning. Accordingly, we reverse the district
court’s first conclusion: that the deputies’ use of force was
objectively reasonable as a matter of law.7




 7
   We note that the district court did not address whether the deputies or
the County would be entitled to statutory immunity under California law,
and we decline to address this issue in the first instance here.
                 HAYES V. COUNTY OF SAN DIEGO                                23

     B. Under California law, the deputies’ duty to act
        reasonably when using deadly force extends to
        their pre-shooting conduct.

    We also reverse the district court’s second conclusion:
that the deputies owed no duty of reasonable care with regard
to their pre-shooting conduct.8

    The California Supreme Court has responded to our
certification order and clarified California’s negligence
doctrine in cases where, as here, a plaintiff attacks peace
officers’ “tactical conduct and decisions leading up to the use
of deadly force.” Hayes II, 305 P.3d at 253. According to
Hayes II, the district court’s conclusion below “overlooks the
long-established principle of California negligence law that
the reasonableness of a peace officer’s conduct must be

 8
   The partial dissent claims that the district court’s opinion “touched all
the bases laid out by the California Supreme Court” in Hayes II. We
disagree.

      The district court’s opinion stated that “[o]n the facts of this case,
Deputies King and Geer owed no duty to Mr. Hayes regarding their pre-
shooting conduct.” District Court Opinion at 13 (emphasis added). Hayes
II is to the contrary. See 305 P.3d at 261 (Plaintiff’s “fact-based theory”
that preshooting conduct “caused [Hayes] to seek his own death at [the
deputies’] hands” falls “within the totality of circumstances” underlying
the “peace officers[’] . . . duty to act reasonably when using deadly
force.”).

    Furthermore, Hayes II expressly recognized that the California
Supreme Court’s holding was inconsistent with the district court’s
opinion. Id. at 257 (“[T]he federal district court ruled . . . that the sheriff’s
deputies owed plaintiff no duty of care with regard to their preshooting
conduct . . . . 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.”).
24              HAYES V. COUNTY OF SAN DIEGO

determined in light of the totality of circumstances.” Id. at
257. There is “no sound reason to divide plaintiff’s cause of
action . . . into a series of decisional moments . . . 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.” Id. at 262, 256. Instead, under
Grudt, an officer’s preshooting conduct 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 preshooting
conduct.” Id. at 257 (emphasis added).9

    Accordingly, while we acknowledge that the district
court’s summary judgment ruling “was undertaken at a time
when the law . . . was unclear” and that the district court
could not be “clairvoyant or prescient,” we also recognize
that after Hayes II, the law “is no longer uncertain.” Ewing
v. Williams, 596 F.2d 391, 397 (9th Cir. 1979). Consistent
with our obligation to follow the authority of California’s
highest court, see Joyner, 940 F.2d at 1565, we conclude that
the deputies’ duty of reasonable care extended to their
conduct before the shooting, and reverse the district court’s
conclusion to the contrary.

                       III. CONCLUSION

   The circumstances of this case can be viewed in multiple
ways: as “suicide by cop,” as officers suddenly threatened
with a deadly weapon, or as a depressed man simply holding


  9
    The court also emphasized that the “reasonableness of the deputies’
preshooting conduct should not be considered in isolation,” but as part of
the totality of the circumstances surrounding the fatal shooting of Hayes.
Hayes II, 305 P.3d at 261–62.
             HAYES V. COUNTY OF SAN DIEGO                  25

a knife when confronted by law enforcement. As with most
excessive force claims, the correct determination of the
circumstances here will require a careful balancing of the
evidence and the inferences that can be made therefrom. For
just this reason, this court has stated on many occasions that
summary judgment in excessive force cases should be granted
sparingly, because the reasonableness of force used is
ordinarily a question of fact for the jury. See, e.g., Smith,
394 F.3d at 701; Santos v. Gates, 287 F.3d 846, 853 (9th Cir.
2002); Liston v. Cnty. of Riverside, 120 F.3d 965, 976 n.10
(9th Cir. 1997) (citing multiple cases).

    Consistent with that teaching, we reverse the summary
judgment regarding Appellant’s negligent wrongful death
claim and remand for further proceedings on that claim. We
also reverse the district court’s finding that Appellant has
standing to assert survival claims related to her father’s
Fourth Amendment rights and remand for further proceedings
on the issue, including whether Appellant has standing to
assert a Monell claim against the County on this basis.

   We affirm the summary judgment as to Appellant’s
§ 1983 claim based on a violation of her rights under the
Fourteenth Amendment, as well as the Monell claim stated
against the County on the same basis.

AFFIRMED in part, REVERSED in part, and
REMANDED. No party to recover costs on this appeal.
26           HAYES V. COUNTY OF SAN DIEGO

RAWLINSON, Circuit Judge, concurring in part and
dissenting in part:

    I agree with the majority that the Plaintiff failed to
adequately support her substantive due process claim. I also
agree that the district court properly granted summary
judgment in favor of the Defendants. I therefore join Section
II.B.2. of the majority opinion. However, I disagree with the
balance of the majority opinion because the record does not
raise a material issue of fact regarding the amount of force
used in this case, even after applying the decision of the
California Supreme Court. See Hayes v. County of San
Diego, 305 P.3d 252 (Cal. 2013).

    Before resolving the legal issues in this case, it is
appropriate to focus on the facts and the circumstances the
officers encountered upon arrival at the scene. The impetus
for the officers’ response was a call from a neighbor who
reported hearing screaming from the house where the
decedent Shane Hayes resided. Hayes’ girlfriend advised
Deputy King that she and Hayes had been arguing. When the
two officers entered the residence, it was so dimly lit that
Deputy King was forced to use his flashlight. Hayes was
located approximately eight feet from Deputy King. When
Deputy King ordered Hayes to show his hands, Hayes
revealed a large knife in his raised right hand, with the tip
pointed downward. At the same time, Hayes was steadily
advancing toward Deputy King. Only four seconds elapsed
between the time Deputy King ordered Hayes to show his
hands and the shooting, with no cessation of Hayes’ forward
advance. Indeed, it is undisputed that Hayes continued to
advance toward Deputy King with the knife raised. Hayes’
girlfriend described Hayes as having a “clueless” expression
on his face as he continued to advance. Deputy King testified
             HAYES V. COUNTY OF SAN DIEGO                   27

that he shot Hayes “[b]ecause [Hayes] wasn’t stopping.” At
the hearing on the summary judgment motion filed by the
County, the Plaintiff did not challenge the officers’ testimony
regarding the sequence of events. Her only challenge was to
the location of the knife once Hayes fell to the floor upon
being shot, which challenge did not raise a material issue of
fact.

    This case is similar to Reynolds v. County of San Diego,
84 F.3d 1162, 1170 (9th Cir. 1996), overruled on a different
ground in Acri v. Varian Associates, 114 F.3d 999, 1000 (9th
Cir. 1997). As in this case, the deceased in Reynolds “was
behaving in a strange manner and wielded a knife . . .” Id. In
Reynolds, we reiterated the United States Supreme Court’s
holding that the use of deadly force by a police officer is
reasonable so long as the officer “has probable cause to
believe that the [person against whom the force is used] poses
a significant threat of death or serious physical injury to the
officer . . .” Id. at 1167. We also noted the Supreme Court’s
caution that in making that determination, we must be ever
mindful that what we view at our leisure with the perspective
of 20–20 hindsight often occurs in rapid sequence. See id.

    As commonly happens in deadly force cases, the events
in this case unfolded rapidly within a dimly lit, confined
space. By Hayes’ girlfriend’s account, Hayes kept coming
toward Deputy King in a small space with an expression on
his face “like nothing’s working upstairs.” Faced with a
steadily advancing Hayes wielding a large knife, the officer
had probable cause to believe that his life was in danger. See
Reynolds, 84 F.3d at 1167. As our precedent makes clear, an
officer need not wait for the assailant to strike a blow before
acting to ensure his safety and the safety of others. See Smith
v. City of Hemet, 394 F.3d 689, 704 (9th Cir. 2005) (en banc)
28            HAYES V. COUNTY OF SAN DIEGO

(“[W]here a suspect threatens an officer with a weapon such
as a gun or a knife, the officer is justified in using deadly
force.”) (citations omitted); see also Blanford v. Sacramento
County, 406 F.3d 1110, 1115–16 (9th Cir. 2005).

    The majority opinion remands the case to the district
court for a determination of whether the Plaintiff may
maintain a survivorship action. However, in my view,
regardless of whether Plaintiff may maintain an action, no
excessive force was used by Deputy King. Rather than
remanding the case to the district court, I would affirm the
district court’s ruling that no excessive force was used.

    The opinion of the California Supreme Court does not
alter my view of this case because that court simply reiterated
our obligation to resolve the excessive force claim by
reviewing the totality of the circumstances, rather than by
dissecting the analysis into separate considerations of pre-
shooting conduct and shooting conduct. See Hayes, 305 P.3d
at 256–57 (explaining that the issue certified erroneously
“focuse[d] in isolation on events that preceded the shooting”
rather than considering those events as part of the “totality of
circumstances”). “[T]he pre-shooting conduct is only
relevant here to the extent it shows, as part of the totality of
circumstances, that the shooting itself was negligent. . . .” Id.
at 257. The California Supreme Court expressly disavowed
any intent to resolve the issue of liability “on the facts
presented.” Id. at 254. Rather, it left that matter to “the
federal courts [to resolve].” Id. However, the California
Supreme Court expressly acknowledged that the “nation’s
high court has observed [that] the 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.” Id. at 258 (quoting Graham v. Connor,
             HAYES V. COUNTY OF SAN DIEGO                  29

490 U.S. 386, 396 (1989)) (alteration and internal quotation
marks omitted).

       In addition [under California law], as 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.

Id. at 258 (quoting Brown v. Ransweiler, 171 Cal. App. 4th
516, 537–38 (2009)).

    The California Supreme Court took care to eschew any
“suggest[ion] that a particular preshooting protocol (such as
a background check or consultation with psychiatric experts)
is always required.” Id. Instead, the court recognized that
“[l]aw enforcement personnel have a degree of discretion as
to how they choose to address a particular situation.” Id.
Finally, the California Supreme Court observed that summary
judgment in favor of the defendants on the negligence claim
would be appropriate if the district court, after viewing the
facts in the light most favorable to the plaintiff, determined
that “no reasonable juror could find negligence.” Id. (citing
Hernandez v. City of Pomona, 207 P.3d 506, 521 (Cal.
2009)).

    In my view, the district court in its analysis touched all
the bases laid out by the California Supreme Court. As the
district court noted, the facts were undisputed. See District
30           HAYES V. COUNTY OF SAN DIEGO

Court Opinion, p. 9. Taking those undisputed facts, the
district court analyzed the excessive force claim by
“contemplat[ing] whether the totality of circumstances”
justified the amount of force used. Id. (emphasis added).
Although the district court stated that it need not consider the
pre-shooting conduct in its analysis, it nevertheless addressed
that conduct and found that inclusion of the pre-shooting
circumstances would not change the outcome. See id. at n.3.
Citing Tennessee v. Garner, 471 U.S. 1, 3 (1985), the district
court concluded that under the totality of the factual
circumstances, including the pre-shooting circumstances
discussed in note 3, “it was objectively reasonable for the
Deputies to conclude that Mr. Hayes posed a significant
threat of death or serious physical injury to themselves or
others. Accordingly, their use of deadly force was reasonable
and did not violate the Fourth Amendment.” District Court
Opinion, p. 10.

    The district court incorporated its reasoning regarding the
Fourth Amendment excessive force claim into the state law
negligence claim, after noting that the California negligence
standard “mirrors the reasonableness inquiry under the Fourth
Amendment.” Id. at 11 (citing Brown, 171 Cal. App. 4th at
534). The district court concluded: “As set out above,
Deputies King and Geer’s use of deadly force did not violate
the Fourth Amendment’s reasonableness requirement. It
necessarily follows that their use of deadly force was not
negligent.” Id. at 11.

    I cannot imagine how or why the district court would
proceed any differently on remand. Perhaps the discussion of
the pre-shooting conduct would be lifted from the footnote
and inserted into the text. But I am convinced that the
outcome would not and should not change. On these
             HAYES V. COUNTY OF SAN DIEGO                 31

undisputed facts and considering the totality of the
circumstances, the district court correctly concluded that no
constitutional violation occurred. I would affirm in its
entirety the district court’s entry of summary judgment in
favor of the defendants. I respectfully dissent.
