FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHELSEY HAYES, a minor by and
through her guardian ad litem,
Plaintiff-Appellant, No. 09-55644
v. D.C. No.
COUNTY OF SAN DIEGO, DBA San 3:07-cv-01738-
Diego County Sheriff’s DMS-JMA
Department; SUE GEER, MIKE OPINION
KING,
Defendants-Appellees.
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 March 22, 2011
Before: Alfred T. Goodwin and Johnnie B. Rawlinson,
Circuit Judges, and Algenon L. Marbley, District Judge.*
Opinion by Judge Goodwin;
Partial Concurrence and Partial Dissent by Judge Rawlinson
*The Honorable Algenon L. Marbley, U.S. District Judge for the South-
ern District of Ohio, sitting by designation.
3845
3850 HAYES v. COUNTY OF SAN DIEGO
COUNSEL
Alvin M. Gomez, The Gomez Law Group, San Diego, Cali-
fornia, for the plaintiff-appellant.
Morris G. Hill, Senior Deputy, John J. Sansone, County
Counsel, County of San Diego, San Diego, California, for the
defendants-appellees.
OPINION
GOODWIN, Circuit Judge:
On the night of September 17, 2006, Shane Hayes was shot
and killed inside his home by San Diego County Sheriff’s
Deputies Mike King and Sue Geer. Hayes’s minor daughter
filed suit against the deputies and the County of San Diego,
alleging state and federal claims stemming from the incident.
The district court granted Defendants summary judgment on
all claims, and Plaintiff timely appealed. For the reasons that
follow, we affirm in part, reverse in part and remand for fur-
ther proceedings.
HAYES v. COUNTY OF SAN DIEGO 3851
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. Hayes’s girl-
friend Geri Neill, who owned 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 argu-
ing 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, rather she
was 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 was
advised by Deputy King 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 King
described as seeing whether Hayes could “physically or men-
tally 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 alco-
hol. Although the deputies had been sent a notification that
Hayes was intoxicated, neither deputy was aware of this infor-
mation before entering the house. The deputies had also not
checked whether there had been previous calls to the resi-
dence and were unaware that Hayes had been taken into pro-
tective 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
3852 HAYES v. COUNTY OF SAN DIEGO
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 rep-
resented 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 from him. Deputy Geer
simultaneously pulled her gun as well, firing two additional
rounds at Hayes.
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 com-
mand 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, how-
ever, 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.” Neil 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.”
HAYES v. COUNTY OF SAN DIEGO 3853
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 Chel-
sey 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 sum-
mary judgment, except for her claim of negligent hiring, train-
ing and supervision by the County.1 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. Standing to Assert Survival Claims
[1] “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 sur-
vival action and that the plaintiff meets that state’s require-
ments for bringing a survival action.” Moreland v. Las Vegas
Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998) (inter-
nal citation omitted).
1
Appellant’s opening and reply briefs fail to address the district court’s
dismissal of her claim against the County for negligent hiring, training and
supervision. Accordingly, any appeal of the district court’s dismissal of
this claim 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 open-
ing brief are waived).
3854 HAYES v. COUNTY OF SAN DIEGO
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 § 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. CODE
CIV. PROC. § 377.60 (“A cause of action for the death of a per-
son 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 dece-
dent 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.”).
[2] 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 pro-
ceeding passes to the decedent’s successor in interest . . . , and
an action may be commenced by the decedent’s personal rep-
resentative or, if none, by the decedent’s successor in inter-
est.” See also Tatum v. City & County of San Francisco, 441
F.3d 1090, 1094 (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 pur-
HAYES v. COUNTY OF SAN DIEGO 3855
porting to act as successor in interest satisfies the require-
ments of California law . . . .”) (citing CAL. CODE CIV. PROC.
§§ 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 § 377.60, not § 377.30. There is no indication Appellant
has filed the affidavit necessary under California law to com-
mence a survival action as a decedent’s successor in interest,
see CAL. CODE CIV. PROC. § 377.32, or whether survival
claims may now be time barred if Appellant has failed to do
so.
[3] 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 Amendment 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.
B. Alleged Fourteenth Amendment Violations
[4] This Circuit has recognized that a child has a constitu-
tionally protected liberty interest under the Fourteenth
Amendment in the “companionship and society” of her father.
Curnow, 952 F.2d at 325; Moreland, 159 F.3d at 371. “Offi-
cial conduct that ‘shocks the conscience’ in depriving [a
child] of that interest is cognizable as a violation of due pro-
cess.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010).
In determining whether excessive force shocks the con-
science, 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) (quot-
ing Moreland, 159 F.3d at 372 (internal quotation marks
omitted)). “Where actual deliberation is practical, then an
3856 HAYES v. COUNTY OF SAN DIEGO
officer’s ‘deliberate indifference’ may suffice to shock the
conscience. On the other hand, where a law enforcement offi-
cer makes a snap judgment because of an escalating situation,
his conduct may only be found to shock the conscience 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.2
After Deputy King ordered Hayes to show his hands, Hayes
raised both his hands to approximately shoulder level, reveal-
ing 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.
[5] The decision to use deadly force against Hayes was a
snap judgement 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
2
We note that Appellant makes no argument that this warrantless entry
itself violated Hayes’s Fourth Amendment rights. Indeed, such an argu-
ment would likely be unavailing in light of the emergency exception to the
warrant requirement. See United States v. Russell, 436 F.3d 1086, 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 3857
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 dan-
gerously 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 vic-
tim evolved quickly and forced the officers to make “repeated
split-second decisions”). Accordingly, the purpose-to-harm
standard is appropriate in this case.
[6] 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 weap-
ons 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 as to the § 1983 claim based on a viola-
tion of Appellant’s rights under the Fourteenth Amendment.
C. Monell Claims of Municipal Liability under § 1983
[7] Finding no violation of either Hayes’s or Appellant’s
constitutional rights, the district court granted the County
summary judgment on all claims to municipal liability under
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Because
we agree that there was no violation of Appellant’s rights
under the Fourteenth Amendment, we affirm summary judge-
ment 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).
[8] As noted, however, we have declined to address the
district court’s decision regarding alleged violations of
3858 HAYES v. COUNTY OF SAN DIEGO
Hayes’s Fourth Amendment rights because it is unclear that
Appellant has standing to assert such survival claims. Accord-
ingly, we remand Appellant’s Monell claim based on alleged
violations of her father’s constitutional rights to the district
court for a determination of whether Chelsey Hayes has
standing to assert survival claims based on alleged violations
of her father’s rights under the Fourth Amendment.
D. Negligent Wrongful Death
[9] To support a claim of negligent wrongful death against
law enforcement officers, a plaintiff must establish the stan-
dard 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, 268 (1990). Appellant contends
that the deputies were negligent both in their conduct prior to
the shooting and in their ultimate decision to use deadly force.
In rejecting this claim, the district court held that the deputies
owed Hayes no duty of care related to their preshooting con-
duct, never addressing whether the deputies’ preshooting con-
duct was negligent or was the cause of Hayes’s death. As to
the decision to use deadly force, the district court held that the
deputies’ use of force was objectively reasonable and there-
fore not negligent.
1. Preshooting Conduct
“While breach of duty and proximate cause normally pre-
sent factual questions, the existence of a legal duty in a given
factual situation is a question of law for the courts to deter-
mine.” Jackson v. Ryder Truck Rental, Inc., 16 Cal.App.4th
1830, 1838 (1993) (quoting Andrews v. Wells, 204
Cal.App.3d 533, 538 (1988). In evaluating state law, “where
the state’s highest court has not decided an issue, the task of
the federal courts is to predict how the state high court would
resolve it.”3 Westlands Water Dist. v. Amoco Chemical Co.,
3
It is unclear from the complaint whether Appellant sought federal juris-
diction on the basis of her federal claims under 28 U.S.C. § 1331, on the
HAYES v. COUNTY OF SAN DIEGO 3859
953 F.2d 1109, 1111 (9th Cir. 1991) (quoting Air-Sea For-
warders, Inc. v. Air Asia Co., Ltd., 880 F.2d 176, 186 (9th
Cir. 1989) (internal quotation marks omitted). “In undertaking
this analysis, ‘a federal court . . . is not free to reject a state
judicial rule of law merely because it has not received the
sanction of the state’s highest court.’ ” Katz v. Children’s
Hosp., 28 F.3d 1520, 1528-29 (9th Cir. 1994) (quoting
Estrella v. Brandt, 682 F.2d 814, 817 (9th Cir. 1982). “An
intermediate state appellate court decision is a ‘datum for
ascertaining state law which is not to be disregarded by a fed-
eral court unless it is convinced by other persuasive data that
the highest court of the state would decide otherwise.’ ”
Estrella, 682 F.2d at 817 (quoting West v. A.T.&T. Co., 311
U.S. 223, 237 (1940)).
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.” Munoz v. Olin, 24
Cal.3d 629, 634 (1979) (citing Grudt v. City of Los Angeles,
2 Cal. 3d 575, 587 (1970). While this tort duty has been
expressly applied to the use of deadly force, see id., “[t]here
remains an open question . . . whether an officer’s lack of due
care with respect to preshooting tactical decisions can give
rise to liability for negligence.” Brown v. Ransweiler, 171
Cal.App.4th 516, 534 (2009).
[10] Appellant contends that Deputies King and Geer were
negligent because they failed to gather all potentially avail-
able information about Hayes or request a PERT team before
confronting him. Relying on two California intermediate
appellate court decisions, the district court held that the depu-
ties owed no duty of care for this preshooting conduct. See
basis of diversity of citizenship under § 1332 or both. Regardless, we must
interpret relevant state law based on the guidance provided by the Califor-
nia state courts. See Katz v. Children’s Hosp., 28 F.3d 1520, 1529 (9th Cir.
1994).
3860 HAYES v. COUNTY OF SAN DIEGO
Adams v. City of Fremont, 68 Cal.App.4th 243, 276 (1998)
(“On balance, the relevant public policy considerations mili-
tate against imposing a legal duty on police officers to take
reasonable steps to prevent a threatened suicide from being
carried out.”); Munoz v. City of Union City, 120 Cal.App.4th
1077, 1097 (2004) (“[L]ike Adams, the need to protect the
overall safety of the community by encouraging law enforce-
ment officers to exercise their best judgment in deciding how
to deal with public safety emergencies vastly outweighs the
societal value of imposing tort liability for the judgments they
make in emergency situations.”). Both City of Union City and
Adams relied upon factors outlined by the California Supreme
Court in Rowland v. Christian, 69 Cal.2d 108, 112-13 (1968),
for determining when a tort duty is owed. Further, the court
in City of Union City directly held that a police commander
could be found negligent only for his decision to use deadly
force in an emergency situation, not for his preshooting con-
duct. 120 Cal.App.4th at 1094-1110.
[11] After the district court granted summary judgment,
however, the California Supreme Court indicated that law
enforcement officers might be subject to negligence liability
for certain preshooting conduct. Hernandez v. City of
Pomona, 46 Cal.4th 501, 515-22 (2009). In Hernandez, the
court granted review to consider the following question:
“When a federal court enters judgment in favor of the defen-
dants in a civil rights claim brought under 42 United States
Code section 1983 . . . , in which the plaintiffs seek damages
for police use of deadly and constitutionally excessive force
in pursuing a suspect, and the court then dismisses a supple-
mental state law wrongful death claim arising out of the same
incident, what, if any, preclusive effect does the judgment
have in a subsequent state court wrongful death action?” Id.
at 505. The court held “that on the record and conceded facts
here, the federal judgment collaterally estops plaintiffs from
pursuing their wrongful death claim, even on the theory that
the officers’ preshooting conduct was negligent.” Id. at 506.
In doing so, the California Supreme Court did not hold that
HAYES v. COUNTY OF SAN DIEGO 3861
law enforcement officers owed no duty of care in regards to
preshooting conduct, as the lower court in City of Union City
had held. Instead, the court found that the officers’ preshoot-
ing conduct did not breach applicable standards of care. Id. at
515-22.
[12] The court in Hernandez did not address City of Union
City or Adams, nor did it expressly determine that law
enforcement officers owe a duty of care in regards to pre-
shooting conduct. Nevertheless, the court’s analysis of
whether the officers’ preshooting conduct independently con-
stituted breach of a duty of care strongly indicates that Cali-
fornia’s highest court would not adopt a rule that officers owe
no such duty. Indeed, in a concurring opinion, Justice Moreno
argued that the court should not have reached the issue “be-
cause plaintiffs are entitled to amend their complaint to allege
preshooting negligence.” Id. at 522 (Moreno, J., concurring).
The majority responded, stating “we find that plaintiffs have
adequately shown how they would amend their complaint to
allege a preshooting negligence claim, and that we must deter-
mine whether any of the preshooting acts plaintiffs have iden-
tified can support negligence liability.” Id. at 521 n.18. This
discussion strongly indicates that the California Supreme
Court believes a duty of care is owed and that courts must
address breach and causation.4
4
In stating that the Hernandez court “expressly reserved” the question
of whether officers owe a duty related to their preshooting conduct, the
dissent suggests that the court avoided any discussion of the viability of
a negligence claim based on preshooting conduct. To the contrary, the
court discussed at length the standard of care applicable to such negli-
gence claims, declining to discuss the issue of duty because it found no
viable claim of breach. Indeed, the discussion identified between the
majority and concurring opinions clearly suggests that the claim could
have been amended, an option that would fail as a matter of law if officers
owe no duty related to preshooting conduct. As noted, we are required to
predict how the state’s Supreme Court would rule on an issue, Westlands
Water Dist., 953 F.2d at 1111, and intermediate appellate court decisions
are evaluated only to assist in this prediction, Estrella, 682 F.2d at 817.
The approach taken by the California Supreme Court in Hernandez con-
flicts sharply with the holdings of the lower appellate courts in City of
Union City and Adams. Contrary to the dissent’s assertion, therefore, these
cases cannot be considered persuasive on this issue.
3862 HAYES v. COUNTY OF SAN DIEGO
[13] On the basis of the discussion in Hernandez, we con-
clude that the California Supreme Court is unlikely to find
law enforcement officers owe no duty of care in regards to
their preshooting conduct in emergency situations. Accord-
ingly, we reverse the district court’s holding that Deputies
King and Geer owed no such duty, and remand for a decision
on the relevant standard of care, whether the deputies
breached this standard, and whether any such breach caused
Hayes’s death.
2. Use of Deadly Force
[14] As noted, under California negligence law, “police
officers have a duty to use reasonable care in employing
deadly force.” City of Union City, 120 Cal.App.4th at 1097
(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. County 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 bat-
tery or wrongful death actions”); Brown, 171 Cal.App.4th at
527 n.11 (“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 circum-
stances 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 circum-
stances, the “quantum of force” used, Davis v. City of Las
HAYES v. COUNTY OF SAN DIEGO 3863
Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007), the availability
of less severe alternatives, id. at 1054, and the suspect’s men-
tal and emotional state, see Deorle v. Rutherford, 272 F.3d
1272, 1282 (9th Cir. 2001). All determinations of unreason-
able force, however, “must embody allowance for the fact that
police officers are often forced to make split-second judg-
ments — in circumstances that are tense, uncertain, and rap-
idly evolving — about the amount of force that is necessary
in a particular situation.” Graham, 490 U.S. at 396-97.
[15] Although we view the evidence in the light most
favorable to Appellant in reviewing summary judgement,
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 Gra-
ham, 490 U.S. at 396. Accordingly, we cannot consider the
fact that Hayes was intoxicated or that he had previously used
a knife in harming himself when evaluating the circumstances
under which the deputies used deadly force.
[16] In considering the first and third factors under Gra-
ham, 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.” 490 U.S. at 396.
Taken 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.5
5
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 suspected
of a crime by the deputies and was not apparently attempting to evade
them. Accordingly, this standard would not apply here.
3864 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.6 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”) (quot-
ing Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994)).
Based on the undisputed facts 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.
[17] Considering all the circumstances 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) (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 constitution-
ally unreasonable even though a United States Marshal had
already been shot and killed by one of the males); Curnow,
952 F.2d at 324-25 (holding that deadly force was unreason-
able 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.
[18] On the other hand, threatening an officer with a
6
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 cir-
cumstances.
HAYES v. COUNTY OF SAN DIEGO 3865
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 knife, the officer
is justified in using deadly force”); Reynolds v. County 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 in
Acri v. Varian Associates, Inc., 114 F.3d 999 (9th Cir. 1997).7
There is no clear evidence, however, that Hayes was threaten-
ing the officers with the knife here. Prior to entering the
house, the deputies were told that Hayes had only threatened
to harm himself, not 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
7
In suggesting that Deputy King had “probable cause to believe that his
life was in danger,” the dissent mistakenly equates the facts found in
Reynolds with those here, ignoring the significant differences between the
two situations. In Reynolds, a man was outside a gas station, wielding a
knife, and “behaving in a strange manner.” 84 F.3d at 1164. The man was
ordered multiple times by an officer to drop the knife, 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 con-
stituted a direct threat to the officer’s life, justifying the officer’s use of
deadly force. Id. at 1170. The circumstances here are distinguishable from
Reynolds because the evidence suggesting that Hayes presented an imme-
diate threat to officer safety is unclear, raising a greater question as to the
reasonableness of the officer’s action compared to the officer in Reynolds.
Specifically, there is no evidence that Hayes was ever ordered to drop the
knife or that he swung the knife at Deputy King. Further, Hayes was
standing in his own kitchen, eight feet away from Deputy King, and was
not suspected of any crime. The dissent accurately points out that “the
events in this case unfolded rapidly within a dimly lit, confined space.”
Yet the lack of clarity created by these circumstances is not cause to sim-
ply adopt the officer’s explanation of their actions. To the contrary, a court
must determine on summary judgment whether there is any issue of mate-
rial fact that would contradict an otherwise reasonable justification for use
of force. As discussed, there remain genuine issues of material fact here
as to whether Hayes represented an immediate threat to officer safety. This
finding is not merely a 20/20 hindsight analysis as the dissent suggests,
but an acknowledgment of a court’s limited role at the summary judgment
stage in determining objective reasonableness under Graham.
3866 HAYES v. COUNTY OF SAN DIEGO
attempt to restrain a suspect where the suspect possessed a
knife and was acting erratically because the suspect was per-
ceived 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 imme-
diate threat. “A simple statement by an officer that he fears
for his safety or the safety 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 or 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 present evidence does not clearly
establish that Hayes was threatening the deputies with the
knife.
[19] 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 per-
son 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 individ-
ual 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
HAYES v. COUNTY OF SAN DIEGO 3867
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. 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 serious injury or
death, there is a requirement that, whenever feasible, the dep-
uty 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 unfea-
sible.
[20] The California Supreme Court has held that it is
improper 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 587 (holding the trial court erred in
removing the issue of negligence from the jury where the evi-
dence 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 intersec-
tion). 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, the reasonableness of the force used
here cannot be determined as a matter of law.
[21] The circumstances of this case can be viewed in mul-
tiple ways: as “suicide by cop,” as officers suddenly threat-
ened with a deadly weapon, or as a depressed man simply
3868 HAYES v. COUNTY OF SAN DIEGO
holding 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 evi-
dence and the inferences that can be made therefrom. For just
this reason, this court has stated on many occasions that sum-
mary judgment in excessive force cases should be granted
sparingly because the reasonableness of force used is ordinar-
ily 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. County of Riverside, 120 F.3d 965, 976 n.10 (9th
Cir. 1997) (citing multiple cases). Accordingly, we reverse
summary judgement on the claim that the deputies’ use of
deadly force was negligent and remand the claim for further
proceedings.8
III. CONCLUSION
For the foregoing reasons, we reverse the district court’s
finding that Chelsey Hayes 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
judgement 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. We
reverse the summary judgement on Appellant’s negligent
wrongful death claim and remand for further proceedings on
this claim.
AFFIRMED in part, REVERSED in part, and
REMANDED. No party to recover costs on this appeal.
8
We note that the district 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 3869
RAWLINSON, Circuit Judge, concurring in part and dissent-
ing in part:
I agree with the majority that the Plaintiff failed to ade-
quately support her substantive due process claim. I also agree
that the district court properly granted summary judgment in
favor of the County of San Diego on that claim. I therefore
join Section II.B. of the majority opinion. However, I disagree
with the balance of the majority opinion, primarily because
the record does not raise a material issue of fact regarding the
amount of force used in this case.
Before resolving the legal issues in this case, it is appropri-
ate to focus on the facts and the circumstances the officers
encountered upon arrival. 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. 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.
Indeed, Deputy King testified 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.
3870 HAYES v. COUNTY OF SAN DIEGO
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 rea-
sonable so long as the officer “has probable cause to believe
that the [person against whom the force is used] poses a sig-
nificant threat of death or serious physical injury to the officer
. . .” Id. at 1167. We also noted the Supreme Court cautioned
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 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.
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.1
1
Because I would conclude that the use of force was reasonable, I also
disagree with the deadly force discussion included as part of the majority’s
analysis of the negligence issue. See Majority Opinion, pp. 18-25. The
majority focuses on dissecting the factors and minimizes the most salient
fact—that Deputy King was unexpectedly confronted with a knife-
wielding individual advancing steadily toward him. As our precedent
makes clear, an officer need not wait for the assailant to strike a blow
HAYES v. COUNTY OF SAN DIEGO 3871
As to the Plaintiff’s negligence claim, the majority inter-
prets Hernandez v. City of Pomona, 46 Cal. 4th 501 (2009) to
support its conclusion that Plaintiff had a viable negligence
claim. Preliminarily, I note that the issue of the viability of a
negligence action was not the focus of the Supreme Court’s
decision. In the words of the California Supreme Court,
review was granted:
to consider the following question: When a federal
court enters judgment in favor of the defendants on
a civil rights claim brought under 42 United States
Code section 1983 (section 1983), in which the
plaintiffs seek damages for police use of deadly and
constitutionally excessive force in pursuing a sus-
pect, and the court then dismisses a supplemental
state law wrongful death claim arising out of the
same incident, what, if any preclusive effect does the
judgment have in a subsequent state court wrongful
death action?
Id. at 505. Absolutely no mention was made of opining on the
viability of negligence claims predicated on pre-shooting con-
duct. In fact, the California Supreme Court expressly declined
to address whether a negligence cause of action was available
in theory. See id. at 521 n.18 (“In light of our analysis and
conclusion, we do not address defendants’ claims that they
owed no duty of care regarding their preshooting conduct
. . .”).
The issue that the Supreme Court declined to address is the
very issue the Courts of Appeal addressed in Munoz v. City
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) (“[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).
3872 HAYES v. COUNTY OF SAN DIEGO
of Union City, 120 Cal. App. 4th 1077, 1093-99 (2004) and
Adams v. City of Fremont, 68 Cal. App. 4th 243, 264-65
(1999), the cases relied on by the district court to hold that
there was no tort duty owed to Hayes for the officers’ pre-
shooting actions.
It would stand to reason that if the California Supreme
Court was inclined to overrule the holdings of Munoz and
Adams, it would have done so. Instead, the California
Supreme Court expressly reserved that question for another
day. The majority disregards the resulting continuing vitality
of Munoz and Adams when it declares that Plaintiff may pur-
sue a claim for preshooting negligence against Deputy King.
I disagree with that approach. Instead, I agree with the district
court that no duty of care was owed to Hayes for any pre-
shooting conduct.
In summary, because I agree with the district court that no
deadly force was used, I would affirm the entry of summary
judgment in favor of Defendants.