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, D.C. No.
Plaintiff-Appellant, 3:07-cv-01738-
v. DMS-JMA
COUNTY OF SAN DIEGO, DBA San S.D. CAL,
Diego County Sheriff’s San Diego
Department; et al., ORDER
Defendants-Appellees. CERTIFYING
QUESTION TO
THE CALIFORNIA
SUPREME COURT
and
WITHDRAWING
OPINION
Filed June 14, 2011
Before: Alfred T. Goodwin and Johnnie B. Rawlinson,
Circuit Judges, and Algenon L. Marbley, District Judge.*
ORDER
This case requires us to decide, as a matter of California
negligence law, whether law enforcement officers owe a duty
of care in approaching a suicidal person as part of a welfare
check. While we previously held there was convincing evi-
dence that the California Supreme Court would not follow
intermediate state appellate court decisions on this issue,
*The Honorable Algenon L. Marbley, U.S. District Court Judge for the
Southern District of Ohio, sitting by designation.
8055
8056 HAYES v. COUNTY OF SAN DIEGO
Appellees requested in their petition for rehearing that we cer-
tify the issue. We now respectfully request that the California
Supreme Court exercise its discretion and decide the certified
question presented below.
I. Question Certified
Pursuant to Rule 8.548 of the California Rules of Court, we
request that the California Supreme Court answer the follow-
ing question:
Whether under California negligence law, sheriff’s
deputies owe a duty of care to a suicidal person
when preparing, approaching, and performing a wel-
fare check on him.
The phrasing of the question set forth above should not
restrict the California Supreme Court’s consideration of the
issues involved, and we understand that the court may refor-
mulate our question. CAL. R. CT. 8.548(f)(5). We will accept
the decision of the California Supreme Court. CAL. R. CT.
8.548(b)(2); Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1164
(9th Cir. 1995). Because it is unclear whether the California
Supreme Court would follow the decisions of the California
Courts of Appeal relevant to this issue, there is no controlling
precedent. See CAL. R. CT. 8.548(a)(2); Emery v. Clark, 604
F.3d 1102, 1120 (9th Cir. 2010); Klein v. United States, 537
F.3d 1027, 1032 (9th Cir. 2008). The California Supreme
Court’s decision on this question of California law could
determine the outcome of this appeal. CAL. R. CT. 8.548(a).
II. Factual and Procedural Background
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,
Chelsey Hayes, subsequently filed suit against the deputies
and the County of San Diego, alleging state and federal
HAYES v. COUNTY OF SAN DIEGO 8057
claims stemming from the incident. Although the claims
asserted each involve the deputies’ use of lethal force, the
question certified here relates exclusively to the deputies’ pre-
shooting conduct in the context of the claim to negligent
wrongful death.
A. The Deputies’ Assessment of the Scene Before
Confronting Hayes
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,
Neill stated 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 indi-
cation that Hayes might be armed with a knife. Hayes had
been drinking heavily that night, but Deputy King did not
asked Neill whether he was under the influence of alcohol or
drugs. Deputy King also did not ask about Hayes’s physical
characteristics or if anyone else was in the house.
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. Deputy King testified
their intent was to determine whether Hayes could “physically
or mentally care” for himself.
8058 HAYES v. COUNTY OF SAN DIEGO
Although the deputies had been sent a notification that
Hayes was intoxicated, neither deputy checked for such a
notification before entering the house, and both were unaware
of this information. The deputies had also not checked
whether there had been previous incidents involving Hayes
and were unaware that he had been taken into protective cus-
tody four months earlier in connection with his suicide
attempt involving a knife. Finally, the deputies did not discuss
whether the department’s Psychiatric Emergency Response
Team (“PERT”) should be called.
Upon entry, both deputies had their guns holstered. Deputy
King was also carrying a Taser, although it was not ready for
immediate use. 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 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.1 Hayes died as a result.
1
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 “charg-
ing” at the officers and had a “clueless” expression on his face at the time,
which she described as “like nothing’s working upstairs.”
HAYES v. COUNTY OF SAN DIEGO 8059
B. District Court Proceedings
Hayes’s daughter asserted a claim for negligence based in
part on the deputies’ preshooting conduct, specifically their
alleged failure to properly assess the situation before entering
the house. She contends that the deputies created the situation
that led to Hayes’s death by confronting him without first
determining the relevant circumstances of Hayes’s prior sui-
cide attempt involving a knife, his level of intoxication, the
potential need for non-lethal force to subdue Hayes, or
whether a PERT team should be called in. She seeks to pre-
sent this evidence to a jury in support of her claim that the
deputies’ conduct breached the standard of care and contrib-
uted to his wrongful death.
The district court entered summary judgment in favor of
the deputies on this claim. Relying on decisions from the Cal-
ifornia Courts of Appeal, Adams v. City of Fremont, 68
Cal.App.4th 243, 276 (1998) and Munoz v. City of Union
City, 120 Cal.App.4th 1077, 1097 (2004), the district court
found the deputies owed Hayes no duty of care in their pre-
shooting conduct. The district court did not address whether
the deputies’ preshooting conduct could be considered a
breach of any standard of care, if such a duty were owed.
III. Basis for Certification
This appeal turns on whether California negligence law
imposes a duty of care on law enforcement officers in regards
to their assessment and handling of a welfare check on a per-
son known to be suicidal. In deciding an issue of state law,
when “there is relevant precedent from the state’s intermedi-
ate appellate court, the federal court must follow the state
intermediate appellate court decision unless the federal court
finds convincing evidence that the state’s supreme court likely
would not follow it.” Ryman v. Sears, Roebuck & Co., 505
F.3d 993, 994 (9th Cir. 2007). There is no controlling prece-
dent here because it is disputed whether the California
8060 HAYES v. COUNTY OF SAN DIEGO
Supreme Court would follow relevant intermediate state
appellate court decisions on this issue. See Emery, 604 F.3d
at 1120; Klein, 537 F.3d at 1032.
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 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 liabil-
ity for negligence.” Brown v. Ransweiler, 171 Cal.App.4th
516, 534 (2009).
As noted by the district court here, however, at least two
decisions by California Courts of Appeal have held that law
enforcement officers owe no such duty of care. In Adams, a
jury held police officers partially liable for the death of an
intoxicated, suicidal man who shot himself, finding the offi-
cers negligently failed to gather sufficient information before
confronting him and escalating the situation. 68 Cal.App.4th
at 259-60. Relying upon factors outlined by the California
Supreme Court in Rowland v. Christian, 69 Cal.2d 108,
112-13 (1968), the Court of Appeal reversed, holding that
police officers owe no duty “to take reasonable steps to pre-
vent a threatened suicide.” 68 Cal. App. 4th at 275. The
Adams court stated that:
On balance, the relevant public policy considerations
militate against imposing a legal duty on police offi-
cers to take reasonable steps to prevent a threatened
suicide from being carried out. The foreseeability
and certainty of harm suffered are factors which
favor imposing a duty. The absence of moral blame,
the remoteness of the connection between the con-
duct of [the police] and the harm suffered, the policy
of preventing future harm, consequences to the com-
HAYES v. COUNTY OF SAN DIEGO 8061
munity, the role of law enforcement in society, and
the potential detriment to the public in imposing
judicial allocation of resources all heavily favor
shielding law enforcement personnel from tort liabil-
ity in instances such as this.
Id. at 276.
Similarly, in Munoz, a jury found an officer had negligently
handled a crisis situation involving an intoxicated, hallucinat-
ing woman armed with a knife, holding the officer partially
liable for her death after he used lethal force to prevent her
from stabbing her family members. 120 Cal.App.4th at
1083-93. Relying on the analysis in Adams, the Court of
Appeal found that the trial court erred in allowing the jury to
consider the officer’s preshooting tactical decisions in evalu-
ating negligence.2 Id. at 1097-98. The Munoz court stated:
[As in] Adams, the need to protect the overall safety
of the community by encouraging law enforcement
officers to exercise their best judgment in deciding
how to deal with public safety emergencies vastly
outweighs the societal value of imposing tort liabil-
ity for the judgments they make in emergency situa-
tions. Adams stands for the proposition that law
enforcement officers are shielded from ordinary neg-
ligence claims based on their response to public
safety emergencies when those efforts prove to be
ineffective in preventing self-inflicted harm or harm
caused by third parties. Applied to the present case,
Adams means that the conduct of the police—
Woodward’s decisions as to how to deploy his offi-
cers at the scene, the efforts made in an attempt to
defuse the situation as safely as possible, and other
such factors—cannot subject appellants to liability.
2
Nonetheless, the Munoz court held the error harmless, finding the ver-
dict was supported by the jury’s determination that the officer was negli-
gent in his use of force. 120 Cal.App.4th at 1101.
8062 HAYES v. COUNTY OF SAN DIEGO
Id. at 1077.
The California Supreme Court has not addressed these
cases and has not directly ruled on the issue of whether offi-
cers owe suicidal persons a duty of care in emergency situa-
tions beyond the amount of force used.3 “[W]here 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.”
Westlands Water Dist. v. Amoco Chemical Co., 953 F.2d
1109, 1111 (9th Cir. 1991) (quoting Air-Sea Forwarders, Inc.
v. Air Asia Co., Ltd., 880 F.2d 176, 186 (9th Cir. 1989) (inter-
nal 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 federal 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)). Accordingly,
the outcome of the question here would normally be dictated
by the holdings in Adams and Munoz.
After the district court granted summary judgment, how-
ever, the California Supreme Court addressed whether law
enforcement officers might be subject to negligence liability
for certain preshooting conduct. See 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-
3
The decision in Adams has been cited by two dissenting opinions
issued by Justices of the California Supreme Court. See Lugtu v. Califor-
nia Highway Patrol, 26 Cal. 4th 703, 733 (2001) (Brown, J., dissenting);
Merrill v. Navegar, Inc., 26 Cal. 4th 465, 507 (2001) (Werdegar, J., dis-
senting).
HAYES v. COUNTY OF SAN DIEGO 8063
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
law enforcement officers owed no duty of care in regards to
preshooting conduct, as the lower courts in Adams and Munoz
had. Instead, the court found that the officers’ specific pre-
shooting conduct did not breach applicable standards of care.
Id. at 515-22. In light of this conclusion, the court in Her-
nandez declined to address the officers’ claim that “they owed
no duty of care regarding their preshooting conduct.” Id. at
521 n.18.
The court’s extended analysis of whether the officers’ pre-
shooting conduct breached the relevant standard of care indi-
cated, however, that it would likely not adopt the broad rule
from Adams and Munoz that officers owe no such duty. Id. at
518-21. 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.
There is disagreement within this court as to whether this
discussion in Hernandez suggests that the California Supreme
8064 HAYES v. COUNTY OF SAN DIEGO
Court would not follow the holdings in Adams and Munoz.
Compare Hayes v. County of San Diego, 638 F.3d 688, 697
(9th Cir. 2011), with id. at 702 (Rawlinson, J., dissenting).
Accordingly, we believe the California Supreme Court should
have the opportunity to speak for itself on the issue. See
Emery, 604 F.3d at 1120; Klein, 537 F.3d at 1032. We would
be grateful if the court would take that opportunity here, and
grant our request to answer the certified question.
IV. Administrative Information
If our request for decision is granted, we designate the
County of San Diego as petitioner. See CAL. R. CT.
8.548(b)(1). The names and address of counsel for the County
of San Diego, Mike King, and Sue Geer are: John J. Sansome
and Morris G. Hill, 1600 Pacific Highway, Room 355, San
Diego, California 92101-2469. The name and address of
counsel for Chelsey Hayes is: Alvin M. Gomez, The Gomez
Law Group, 8910 University Center Lane, Suite 5500, San
Diego, California 92122.
In accordance with California Rule of Court 8.548, the
Clerk of this court shall file the original and ten copies of this
order, along with all briefs on appeal to this court and any
record materials as requested, with the California Supreme
Court. The Clerk shall also file certificates of service with the
parties to this appeal. CAL. R. CT. 8.548(c), (d).
V. Withdrawal of Opinion and Stay of Proceedings
In light of this court’s decision to certify the issue presented
here, the opinion filed in this case on March 22, 2011 and
published at 638 F.3d 688 is hereby withdrawn. The petition
for rehearing and petition for rehearing en banc is denied as
moot. The case is ordered resubmitted for decision without
further argument or briefing. All further proceedings in this
case before our court are stayed pending final action by the
California Supreme Court. The parties shall notify the Clerk
HAYES v. COUNTY OF SAN DIEGO 8065
of this court within ten days after the California Supreme
Court accepts or rejects certification, and again within ten
days if the California Supreme Court renders an opinion.
This court retains jurisdiction over any further proceedings
in this case.
IT IS SO ORDERED.