Tiffany Tabares v. City of Huntington Beach

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TIFFANY TABARES, individually and No. 19-56035
as successor-in-interest to Dillan
Tabares, D.C. No.
Plaintiff-Appellant, 8:18-cv-00821-
JLS-JDE
v.

CITY OF HUNTINGTON BEACH; ERIC OPINION
ESPARZA, an individual; DOES, 1–10,
inclusive,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding

Argued and Submitted December 7, 2020
Pasadena, California

Filed February 17, 2021

Before: Paul J. Kelly, Jr., * Ronald M. Gould, and
Ryan D. Nelson, Circuit Judges.

Opinion by Judge R. Nelson

*
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 TABARES V. CITY OF HUNTINGTON BEACH

SUMMARY **

Civil Rights

The panel reversed the district court’s summary
judgment for defendants on plaintiff’s state law negligence
claim, and remanded, in an action brought under 42 U.S.C.
§ 1983 and California law against a police officer arising
from the fatal shooting of plaintiff’s son, Dillan Tabares.

Huntington Beach police officer Eric Esparza shot
Tabares seven times in front of a 7-Eleven after the two were
involved in a physical altercation. The district court granted
summary judgment for Officer Esparza and the City of
Huntington Beach on the § 1983 and state law claims, and
plaintiff appealed only her negligence claim.

The panel first noted that California negligence law
regarding the use of deadly force overall is broader than
federal Fourth Amendment law. Under California law, an
officer’s pre-shooting decisions can render his behavior
unreasonable under the totality of the circumstances, even if
his use of deadly force at the moment of the shooting might
be reasonable in isolation. Federal law, however, generally
focuses on the tactical conduct at the time of shooting,
though a prior constitutional violation may proximately
cause a later excessive use of force.

The panel held that the district court erroneously
conflated the legal standards under the Fourth Amendment
and California negligence law. Specifically, the district

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 TABARES V. CITY OF HUNTINGTON BEACH 3

court: (1) inaccurately concluded that plaintiff did not point
to any evidence probative of the fact that Tabares exhibited
symptoms of mental illness that would have been apparent
to Officer Esparza; (2) did not consider that a jury could find
Officer Esparza’s pre-shooting conduct unreasonable under
California law, given Tabares’s potential mental illness; and
(3) misinterpreted the Ninth Circuit precedent set forth in
Billington v. Smith, 292 F.3d 1177 (9th Cir. 2002), in
assessing the reasonableness of Officer Esparza’s conduct at
the time of the shooting.

The panel held that plaintiff presented sufficient
evidence that Officer Esparza’s shooting of Tabares could be
found negligent by a reasonable juror under the broader
formulation of reasonableness in California law.
Considering all evidence in the light most favorable to
plaintiff, a reasonable jury could conclude that Officer
Esparza should have suspected Tabares had mental health
issues and that he unreasonably failed to follow police
protocol when dealing with potentially mentally ill persons
before using force. Finally, Officer Esparza’s decision to
shoot Tabares without warning six times––and then a
seventh––could be found by a jury to be unreasonable.
4 TABARES V. CITY OF HUNTINGTON BEACH

COUNSEL

Catherine Sweetser (argued), Paul Hoffman, and John
Washington, Schonbrun Seplow Harris Hoffman & Zeldes
LLP, Los Angeles, California, for Plaintiff-Appellant.

Daniel S. Cha (argued) and Pancy Lin, Senior Deputy City
Attorney; Brian L. Williams, Chief Trial Counsel; Michael
E. Gates, City Attorney; Office of the City Attorney,
Huntington Beach, California; for Defendants-Appellees.

OPINION

R. NELSON, Circuit Judge:

Dillan Tabares was fatally shot seven times by a police
officer in front of a 7-Eleven. Tiffany Tabares brought
federal and California law claims in response to her son’s
death (appealing only the state negligence claim). We
address the material difference between the Fourth
Amendment and California negligence law.

In considering the United States Constitution, we must
“always regard[] it as unique.” Rhode Island v.
Massachusetts, 37 U.S. 657, 673 (1838). The Constitution
is a “singular and solemn . . . experiment” created by one of
the finest group of statesmen ever assembled. The Federalist
No. 40 (James Madison). It was born of a hard-fought
struggle that against all odds wrested a fledgling nation from
oppression by the then-greatest empire on earth. The Bill of
Rights was adopted in the same vein, championed by James
Madison. When we interpret the Fourth Amendment, we
ground our jurisprudence in an understanding of the text’s
original public meaning at ratification and “traditional
 TABARES V. CITY OF HUNTINGTON BEACH 5

standards of reasonableness.” See Virginia v. Moore,
553 U.S. 164, 168–69, 171 (2008). Above all, Chief Justice
Marshall reminds us, “we must never forget that it is a
constitution we are expounding.” McCulloch v. Maryland,
17 U.S. 316, 407 (1819).

California negligence law, on the other hand, is the
product of common law developed through decisions by
California courts. Justice Brandeis famously noted that
under our federalist system, “a . . . state may, if its citizens
choose, serve as a laboratory; and try novel social and
economic experiments without risk to the rest of the
country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 387
(1932) (Brandeis, J., dissenting). The U.S. Constitution and
California common law are thus two distinct legal
frameworks. “Individual States may surely construe their
own [laws] as imposing more stringent constraints on police
conduct than does the Federal Constitution.” California v.
Greenwood, 486 U.S. 35, 43 (1988). But “when a State
chooses to protect . . . beyond the level that the Fourth
Amendment requires,” these “additional protections
exclusively a[re] matters of state law.” Moore, 553 U.S.
at 171. And the California Supreme Court has held that
California negligence law “is broader than federal Fourth
Amendment law.” Hayes v. Cnty. of San Diego, 305 P.3d
252, 263 (Cal. 2013).

The district court erroneously conflated the legal
standards under the Fourth Amendment and California
negligence law. We hold that Ms. Tabares presented
sufficient evidence that Officer Eric Esparza’s shooting of
Mr. Tabares could be found negligent by a reasonable juror
under the broader formulation of reasonableness in
6 TABARES V. CITY OF HUNTINGTON BEACH

California law. 1 See id. at 258. Accordingly, we reverse the
district court’s grant of summary judgment on the negligence
claim and remand for further proceedings.

I

On the morning of September 22, 2017, Officer Esparza,
a City of Huntington Beach police officer, sat at an
intersection in his police vehicle when he noticed
Mr. Tabares standing on the sidewalk. 2 Officer Esparza had
never seen Mr. Tabares before, had not received a call for
service regarding him, and had no reason to suspect he had
a weapon or had committed a crime.

Mr. Tabares caught Officer Esparza’s attention for
several reasons. He was wearing a sweater on a warm day,
walking abnormally, made fidgeting, flinching movements
with his hands, and looked over in Officer Esparza’s
direction several times. Simultaneously, Jack Roten, a
former police officer standing on the corner, noted
Mr. Tabares talking to himself and making gestures with his
hands as he passed Roten. These behaviors made Roten
believe Mr. Tabares had mental health issues, though Roten

1
Defendants’ counsel characterizes Ms. Tabares’s state law
negligence claim as a “Hail Mary.” “A Hail Mary pass in American
football is a long forward pass made in desperation at the end of a game,
with only a small chance of success,” United States v. George, 676 F.3d
249, 251 (1st Cir. 2012), such as the 41-yard touchdown pass as time
expired in BYU’s 1980 “Miracle Bowl” victory. The negligence claim
here was not a “Hail Mary” given California law.
2
Some facts are undisputed, but where a genuine dispute of material
fact exists, we recount the facts in the light most favorable to
Ms. Tabares. Tuuamalemalo v. Greene, 946 F.3d 471, 474 (9th Cir.
2019).
 TABARES V. CITY OF HUNTINGTON BEACH 7

did not think he was dangerous or threatened Roten’s
safety. 3

Officer Esparza decided to talk to Mr. Tabares. He
parked at a 7-Eleven towards where Mr. Tabares was
walking and exited his vehicle. He then asked Mr. Tabares
to stop walking to talk. Mr. Tabares responded “no” and told
Officer Esparza to leave him alone while continuing to walk
away.

Officer Esparza decided to detain Mr. Tabares for an
unspecified reason and instructed him to stop walking away
multiple times. Philip Azevedo, a customer at the 7-Eleven,
stated Mr. Tabares had a “crazed look on his face” when
entering the parking lot and “looked completely out of it.”
Shanon Forge, a nurse sitting in her car facing the 7-Eleven,
thought Mr. Tabares looked “intimidating” and
“intoxicated,” possibly under the influence of PCP or
methamphetamines. Another witness, Mike Martin,
described Mr. Tabares as having “glazed over eyes” and
possibly under the influence of drugs. Mr. Tabares
eventually turned towards Officer Esparza while speaking
loudly and aggressively.

Mr. Tabares then walked towards Officer Esparza in a
confrontational manner with his fists clenched. Forge began

3
Defendants challenge Roten’s declaration as lacking foundation
because he was across the street at the time of the shooting, though Roten
was next to Mr. Tabares when Roten observed his possible mental health
issues. But “[c]redibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge” and “all justifiable inferences are to be
drawn in [the non-movant’s] favor.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986) (citation omitted).
8 TABARES V. CITY OF HUNTINGTON BEACH

recording on her cell phone. 4 Officer Esparza backed up on
the sidewalk while instructing Mr. Tabares to stop, then
tasered him with no visible effect. Mr. Tabares then
approached Officer Esparza and punched him in the face.
The two began to fight, and Officer Esparza appeared to put
Mr. Tabares in a headlock. After several seconds, the two
ended up on the ground. Another witness, Timothy
Newtson, began to film video.

Officer Esparza was on top of Mr. Tabares while he
resisted with his back on the ground. Officer Esparza struck
Mr. Tabares several times; Mr. Tabares did not strike Officer
Esparza. Mr. Tabares grabbed at Officer Esparza’s belt
while Officer Esparza repeated “let go of the gun.” Officer
Esparza felt Mr. Tabares take an item from Officer Esparza’s
belt, which turned out to be his police flashlight. Officer
Esparza stood, drew his gun, and separated from
Mr. Tabares, as his body camera started recording. Officer
Esparza retreated about 15 feet away and saw Mr. Tabares
holding what Officer Esparza should have known was his
flashlight.

Mr. Tabares stood with his left side turned slightly
towards Officer Esparza while holding the flashlight in his
right hand. Three seconds after separating 15 feet, Officer
Esparza shot Mr. Tabares six times, shouted “get down”

4
Where, as here, multiple videos captured the shooting with “no
allegations or indications that [they were] doctored or altered in any way,
nor any contention that what [they] depict[] differs from what actually
happened,” we “allow the videotape[s] to speak for [themselves].” Scott
v. Harris, 550 U.S. 372, 378 & n.5 (2007). However, “[t]he mere
existence of video footage of the incident does not foreclose a genuine
factual dispute as to the reasonable inferences that can be drawn from
that footage.” Vos v. City of Newport Beach, 892 F.3d 1024, 1028 (9th
Cir. 2018) (citing Scott, 550 U.S. at 380).
 TABARES V. CITY OF HUNTINGTON BEACH 9

twice, then shot him a seventh time after he stumbled from
the gunshots. Mr. Tabares slumped to the ground—dead.

Ms. Tabares, individually and as successor-in-interest to
her son, filed a complaint in federal district court alleging
42 U.S.C. § 1983 claims, including for excessive force under
the Fourth Amendment, and California claims for battery,
negligence, and a Bane Act violation. The district court
granted summary judgment on all claims for Defendants
Officer Esparza and the City of Huntington Beach. Tabares
v. City of Huntington Beach, No. 8:18-CV-00821-JLS-JDE,
2019 WL 4455999 (C.D. Cal. July 30, 2019). In a three-
sentence paragraph, the district court rejected Ms. Tabares’s
negligence claim “for the same reasons” it rejected her
federal claims, “to wit, that Esparza did not properly identify
Tabares’s mental illness or establish cause to initiate a stop.”
Id. at *10. Relying on Billington v. Smith, 292 F.3d 1177
(9th Cir. 2002), the district court held that “after multiple
ignored warnings and nearly a minute of sustained combat,
Esparza is objectively entitled to th[e] inference” that “no
amount of warnings or non-lethal means will succeed in
safely subduing a suspect.” Id. at *9. Ms. Tabares appeals
only her negligence claim.

II

“We review de novo the district court’s order granting
summary judgment and its interpretation of state law.” Diaz
v. Kubler Corp., 785 F.3d 1326, 1329 (9th Cir. 2015)
(internal citations omitted). We “view the facts and draw
reasonable inferences in the light most favorable to the party
opposing the summary judgment motion.” Scott, 550 U.S.
at 378 (alterations removed) (internal quotation marks and
citations omitted). But any dispute about the facts must be
“genuine” and not “blatantly contradicted by the record, so
10 TABARES V. CITY OF HUNTINGTON BEACH

that no reasonable jury could believe it.” Id. at 380; see also
Fed. R. Civ. P. 56(c).

“When interpreting state law, we are bound to follow the
decisions of the state’s highest court, and when the state
supreme court has not spoken on an issue, we must
determine what result the court would reach based on state
appellate court opinions, statutes and treatises.” Diaz,
785 F.3d at 1329 (cleaned up). “We will ordinarily accept
the decision of an intermediate appellate court as the
controlling interpretation of state law,” Tomlin v. Boeing
Co., 650 F.2d 1065, 1069 n.7 (9th Cir. 1981), “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). To
affirm here, we must decide based on the record before us
that a verdict in favor of Defendants is the only conclusion a
reasonable jury could reach. See Anderson, 477 U.S. at 248. 5

III

A

We first compare the contours of California negligence
law governing an officer’s use of deadly force with the
Fourth Amendment standard. Under California negligence
law, “a plaintiff must show that the defendant had a duty to
use due care, that he breached that duty, and that the breach
was the proximate or legal cause of the resulting injury.”

5
Defendants argue that Ms. Tabares is collaterally estopped from
appealing the district court’s order granting summary judgment to
Defendants on her state law claim. Our de novo review means we are
not bound or estopped by the district court’s interpretations of the law.
Nor is the grant of summary judgment here a finding of fact. See
Anderson, 477 U.S. at 250.
 TABARES V. CITY OF HUNTINGTON BEACH 11

Hayes, 305 P.3d at 255 (cleaned up). And “officers have a
duty to act reasonably when using deadly force.” Id. at 256
(citations omitted). “[T]he ‘reasonableness’ of a particular
use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id. at 258 (quoting Graham v. Connor,
490 U.S. 386, 396 (1989)). 6 The officer’s conduct must only
“fall[] within the range of conduct that is reasonable” viewed
“in light of the totality of circumstances.” Id. at 256, 258
(citation omitted).

Officers are liable “if the tactical conduct and decisions
leading up to the use of deadly force show, as part of the
totality of circumstances, that the use of deadly force was
unreasonable.” Id. at 254 (emphasis added). Under
California law, the officer’s pre-shooting decisions can
render his behavior unreasonable under the totality of the
circumstances, even if his use of deadly force at the moment
of shooting might be reasonable in isolation. See, e.g.,
Mendez v. Cnty. of Los Angeles, 897 F.3d 1067, 1082–83
(9th Cir. 2018); Grudt v. City of Los Angeles, 468 P.2d 825,
831 (Cal. 1970). Federal law, however, generally focuses on
the tactical conduct at the time of shooting, see Scott v.
Henrich, 39 F.3d 912, 914 (9th Cir. 1994), though a prior

6
Defendants note there was an arrest warrant for Mr. Tabares’s
failure to report to parole and that he may have been involved in the
murder of Richard Darland. However, Officer Esparza admits he did not
know or have reason to suspect these facts before interacting with
Mr. Tabares, so they are irrelevant to the reasonableness analysis here.
See Glenn v. Washington Cnty., 673 F.3d 864, 872, 873 n.8 (9th Cir.
2011) (“We cannot consider evidence of which the officers were
unaware—the prohibition against evaluating officers’ actions ‘with the
20/20 vision of hindsight’ cuts both ways.” (quoting Graham, 490 U.S.
at 396)).
12 TABARES V. CITY OF HUNTINGTON BEACH

constitutional violation may proximately cause a later
excessive use of force, Mendez, 897 F.3d at 1076–82.

Thus, California negligence law regarding the use of
deadly force overall is “‘broader than federal Fourth
Amendment law.’” Villegas ex rel. C.V. v. City of Anaheim,
823 F.3d 1252, 1257 n.6 (9th Cir. 2016) (quoting Hayes,
305 P.3d at 263). 7

California courts do generally use “[t]he same
consideration” as federal law in assessing an officer’s
tactical conduct at the time of shooting as part of the totality
of the circumstances. Hernandez, 207 P.3d at 515.

7
Defendants argue for the first time on appeal that “[t]here can be
no civil liability under California law as the result of a justifiable
homicide” under Cal. Penal Code § 196 (2019). See Martinez v. Cnty.
of Los Angeles, 47 Cal. App. 4th 334, 349 (Ct. App. 1996). Under this
theory of immunity, they assert an officer may “‘press forward and make
the arrest, using all the force [reasonably] necessary to accomplish that
purpose.’” See Hernandez v. City of Pomona, 207 P.3d 506, 519 (Cal.
2009) (citations omitted). But this new argument boils down to the same
issue litigated here: whether Officer Esparza’s conduct was objectively
reasonable or not. Therefore, it is not necessary to address this argument
separately from the analysis under Hayes, even were it not waived. See
Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988–89 (9th Cir.
2017).

Separately, there is no “qualified immunity under California law”
comparable to federal § 1983 jurisprudence. Venegas v. Cnty. of Los
Angeles, 153 Cal. App. 4th 1230, 1249 (Ct. App. 2007); see also Mendez,
897 F.3d at 1083–84 (rejecting claims of immunity in negligence claims
under California Government Code § 821.6, which is limited to
malicious-prosecution claims, and California Government Code § 820.2,
which “applies only to policy decisions, not to operational decisions”);
Conway v. Cnty. of Tuolumne, 231 Cal. App. 4th 1005, 1015 (Ct. App.
2014) (“[D]iscretionary immunity does not apply to . . . using
unreasonable force when making an arrest or overcoming resistance to
it.” (citations omitted)).
 TABARES V. CITY OF HUNTINGTON BEACH 13

California courts consider “the severity of the crime at issue,
whether the plaintiff posed a reasonable threat to the safety
of the officer or others, and whether the plaintiff was actively
resisting detention or attempting to escape.” Id.

Under federal law, deadly force can be “reasonable only
if ‘the officer has probable cause to believe that the suspect
poses a significant threat of death or serious physical injury
to the officer or others.’” Henrich, 39 F.3d at 914 (emphasis
omitted) (quoting Tennessee v. Garner, 471 U.S. 1, 3
(1985)). “Other relevant factors include the availability of
less intrusive alternatives to the force employed, whether
proper warnings were given and whether it should have been
apparent to officers that the person they used force against
was emotionally disturbed.” Glenn, 673 F.3d at 872. “Even
when an emotionally disturbed individual is ‘acting out’ and
inviting officers to use deadly force to subdue him, the
governmental interest in using such force is diminished by
the fact that the officers are confronted . . . with a mentally
ill individual.” Deorle v. Rutherford, 272 F.3d 1272, 1283
(9th Cir. 2001).

B

Against this backdrop, the district court made three
errors. First, it inaccurately concluded that Ms. Tabares did
“not point to any evidence probative of the fact that
[Mr.] Tabares exhibited symptoms of mental illness that
would have been apparent to Esparza.” Tabares, 2019 WL
4455999 at *6. In doing so, the district court “fail[ed] to
credit evidence that contradicted some of its key factual
conclusions” and “improperly weighed the evidence and
resolved disputed issues in favor of the moving party.”
Tolan v. Cotton, 572 U.S. 650, 657 (2014) (alterations
adopted) (internal quotation marks and citation omitted).
14 TABARES V. CITY OF HUNTINGTON BEACH

Second, the district court conflated the broader
California negligence standard regarding pre-shooting
conduct with the Fourth Amendment standard. 8 Tabares,
2019 WL 4455999 at *10. It did not consider that a jury
could find Officer Esparza’s pre-shooting conduct
unreasonable under California law, given Mr. Tabares’s
potential mental illness.

And third, the district court misinterpreted Ninth Circuit
precedent in assessing the reasonableness of Officer
Esparza’s conduct at the time of the shooting. It essentially
concluded that California law precludes negligence when an
officer fights with an unarmed man, retreats 15 feet, and then
shoots the stationary man holding a flashlight seven times
without warning. Id. at *7, *9. Neither federal law
governing tactical conduct, nor California law looking at the
same tactical considerations as federal law, supports such a
conclusion.

1

We turn to the first issue. The record, including
declarations by two former police officers and Azevedo’s

8
Defendants argue that Ms. Tabares presents a “new theory of pre-
shooting negligence” on appeal that was waived by failing to bring it
before the district court. But Defendants acknowledge that below,
Ms. Tabares noted that California negligence law is broader than federal
law in excessive force and cited Hayes, 305 P.3d 252. The district court
recognized this argument. Tabares, 2019 WL 4455999 at *10. And
Defendants would not “have tried [the] case differently either by
developing new facts in response to or advancing distinct legal
arguments against the issue.” Janes v. Wal-Mart Stores Inc., 279 F.3d
883, 888 n.4 (9th Cir. 2002) (citation omitted). Even assuming this
argument was not raised, “the pertinent record has been fully developed”
and Defendants suffer no prejudice since they responded in their
Answering Brief. See Mashiri, 845 F.3d at 988–89.
 TABARES V. CITY OF HUNTINGTON BEACH 15

testimony, shows a reasonable jury could find that Officer
Esparza should have suspected Mr. Tabares could have
mental health issues.

Roten, an eyewitness and former police officer, believed
Mr. Tabares may have had mental health issues because he
was talking to himself and gesturing with his hands. Officer
Esparza observed Mr. Tabares at the same time Roten
observed these behaviors. Officer Esparza cited
Mr. Tabares’s unusual behavior, including his hand
gestures, as a reason for stopping him.

Roger Clark, a 27-year veteran of the Los Angeles
County Sheriff’s Department who retired as a Lieutenant,
submitted an expert declaration supporting this conclusion.
Clark references California’s Peace Officer Standards and
Training (“P.O.S.T.”) “applicable to all state police
officers,” which could be used by a “rational jury . . . in
assessing whether the officer[’s] use of force was
unreasonable.” Smith v. City of Hemet, 394 F.3d 689, 703
(9th Cir. 2005) (citation omitted); see also People v. Sibrian,
3 Cal. App. 5th 127, 136 (Ct. App. 2016) (“[E]xpert
testimony on the use of force has often been admitted in
California excessive force cases without objection.”
(citations omitted)).

Based on his review of the evidence, including relevant
videos, Roten’s declaration, and the police incident report,
Clark concluded that “[a] reasonable officer in Officer
Esparza’s position acting with consistent standard police
practices would have known or should have known that
Mr. Tabares was mentally ill,” because “[o]fficers are
trained to recognize indicators of mental illness, such as:
fearful or inappropriate behavior, excitability, and
disorganized speech and thought patterns.” Further,
16 TABARES V. CITY OF HUNTINGTON BEACH

Azevedo stated that Mr. Tabares looked “out of it” and
“crazed” prior to the shooting.

Considering all evidence in the light most favorable to
Ms. Tabares, a reasonable jury could conclude that Officer
Esparza should have suspected Mr. Tabares had mental
health issues, based on P.O.S.T. and Officer Esparza’s
observations similar to those of other witnesses who
believed Mr. Tabares had mental health issues. See, e.g.,
Vos, 892 F.3d at 1029, 1034. The district court improperly
“credited the evidence of the party seeking summary
judgment and failed properly to acknowledge key evidence
offered by the party opposing that motion.” Tolan, 572 U.S.
at 659; see also id. at 660 (“[G]enuine disputes are generally
resolved by juries in our adversarial system.”).

2

Second, the district court conflated Fourth Amendment
excessive force standards with California negligence law.
California negligence law overall is “‘broader than federal
Fourth Amendment law’” in excessive force cases. Villegas,
823 F.3d at 1257 n.6 (quoting Hayes, 305 P.3d at 263). In
California, an officer’s pre-shooting decisions can make his
later use of force unreasonable under the totality of the
circumstances. See Mendez, 897 F.3d at 1082–83; Grudt,
468 P.2d at 831. In this case, a juror could find Officer
Esparza unreasonably failed to follow police protocol
dealing with potentially mentally ill persons before using
force. Officer Esparza’s “failure to follow a safety rule
promulgated by his employer, regardless of its substance,
serves as evidence of negligence.” Grudt, 468 P.2d at 831
(citation omitted); see also People v. Brown, 245 Cal. App.
4th 140, 171 (Ct. App. 2016) (“[O]fficer training and tactics
can potentially be relevant for purposes of tort liability.”).
 TABARES V. CITY OF HUNTINGTON BEACH 17

Ample evidence supports that Officer Esparza
potentially failed to deescalate the situation per P.O.S.T.
regarding potentially mentally ill individuals. For instance,
Clark stated that Officer Esparza “failed to respond as taught
by P.O.S.T., which states that the appropriate tactical actions
officers should do when confronted with a mentally ill
individual is [sic] to request backup, calm the situation,
avoid physical contact, determine if the person is taking
medication, acknowledge the person’s feelings, and not to
make threats.” Before interacting with Mr. Tabares, Officer
Esparza had no reason to suspect Mr. Tabares was
dangerous, had a weapon, or had committed a crime. But
Officer Esparza knew in advance that Mr. Tabares was
acting strangely. And, as Clark stated, Officer Esparza
should have used reasonable and generally accepted police
practices to deal with Mr. Tabares. Cf. City of Hemet,
394 F.3d at 703 (holding a “rational jury could rely upon”
evidence “that the officers’ conduct violated applicable
police standards and that there were alternative techniques
available for subduing him that presented a lesser threat of
death or serious injury” when “assessing whether the
officers’ use of force was unreasonable”). 9

3

Finally, Officer Esparza’s decision to shoot Mr. Tabares
without warning six times—and then a seventh—could be
found by a jury to be unreasonable. The district court’s

9
Separately, Ms. Tabares argues there was no reasonable suspicion
for the stop and that this “further made the manner of the attempted
detention unreasonable.” The district court decided there was no Fourth
Amendment violation because Mr. Tabares was not unreasonably
detained. Tabares, 2019 WL 4455999 at *4–*5. But even if the officers’
alleged pre-shooting negligence does not establish a constitutional
violation, it may establish negligence under California law.
18 TABARES V. CITY OF HUNTINGTON BEACH

holding to the contrary is based on a misreading of
Billington, 292 F.3d 1177, and imputes this misreading of
Ninth Circuit precedent directly into the broader California
negligence analysis.

The Roten and Clark declarations place in material
dispute any immediate or serious threat to Officer Esparza at
the time of the shooting. Roten “certainly would not have
shot the subject if [he] were the officer” because there was
no “immediate” or “serious threat posed to the officer at the
time of the shots.” Roten believed Mr. Tabares “looked tired
and looked like he was done with the struggle.” He noted
that officers are “trained that deadly force should only be
used as a last resort” and “this situation did not come close
to necessitating the use of deadly force.” True, Roten did
not observe Mr. Tabares holding Officer Esparza’s
flashlight. Regardless, drawing “all justifiable inferences”
of the evidence in favor of Ms. Tabares, Roten’s testimony
supports that Mr. Tabares may not have posed a threat at the
time of shooting based on his demeanor. See Anderson,
477 U.S. at 255.

According to Clark, Officer Esparza did not respond
according to P.O.S.T. Officer Esparza would have told
Mr. Tabares to “drop it” if he thought Mr. Tabares had a
knife. Further, Clark believed it “was not an immediate
defense of life situation,” because “Officer Esparza had less
than lethal options available to him at the time of the
shooting” and “[a] reasonable officer in Officer Esparza’s
position would have known or should have known that
Mr. Tabares was holding the officer’s flashlight.” The
district court thus correctly held that a reasonable dispute of
material fact existed and a jury could infer that Officer
Esparza should have known it was a flashlight, not a knife.
See id.; Tabares, 2019 WL 4455999 at *7.
 TABARES V. CITY OF HUNTINGTON BEACH 19

Officer Esparza’s failure to give Mr. Tabares a warning
or instruct him to put his hands up, drop the item, or freeze
could be considered unreasonable by a jury. A failure to
warn before using deadly force could be unreasonable unless
impracticable. Harris v. Roderick, 126 F.3d 1189, 1201 (9th
Cir. 1997). The evidence supports that Mr. Tabares was
“done with the struggle.” Moreover, after his sixth shot,
Officer Esparza waited a few seconds and told Mr. Tabares,
“get down,” before firing a seventh shot, suggesting he could
have warned him before his first shot.

The use of deadly force may also be unreasonable apart
from any warning if Mr. Tabares did not “pose[] a significant
threat of death or serious physical injury to the officer or
others” at the time of shooting. Henrich, 39 F.3d at 914
(internal quotation marks and citation omitted); see also
Deorle, 272 F.3d at 1281 (holding an officer’s actions could
be unreasonable if they resulted from “[a] desire to resolve
quickly a potentially dangerous situation” rather than an
immediate threat). A reasonable jury could find the video
evidence does not show that Mr. Tabares, 15 feet away and
stationary, posed a significant immediate threat to Officer
Esparza or any bystanders. Cf. Martinez, 47 Cal. App. 4th
at 345 (holding there was a threat where the suspect had
stated he intended to kill the police officer, was indisputably
armed with a knife, and continually advanced to within ten
feet despite warnings).

The district court misread Billington in deciding an
immediate significant threat existed. In Billington,
Detective Smith, a police officer, was grappling over control
of a gun with Hennessey, the decedent. We held Detective
Smith “could have reasonably shot Hennessey even if he had
just pushed Hennessey back a few feet.” 292 F.3d at 1185.
Here, the district court found that “hypothetical posed . . .
20 TABARES V. CITY OF HUNTINGTON BEACH

describes precisely what happened.” Tabares, 2019 WL
4455999 at *8. But that hypothetical is not what happened
here.

Rather, the factual dispute over the distance between
Detective Smith and Hennessey in Billington was
“immaterial . . . because either way, Detective Smith was
locked in hand-to-hand combat and losing.” 292 F.3d
at 1185. The witness who testified that Smith and
Hennessey were separated by several feet also stated
“Hennessey was charging Detective Smith when he shot
Hennessey” and “at the moment of the shooting,
[Hennessey] had raised his right hand to hit Detective Smith
again.” Id. at 1182. And the powder residue showed that
“Hennessey was shot from a distance of eight to fourteen
inches.” Id. Even if separated by a few feet, Hennessey and
Detective Smith were “locked in combat” because
Hennessey was charging and about to hit Detective Smith.
Id. at 1185.

Here, Officer Esparza was not “locked in hand-to-hand
combat” with Mr. Tabares at the time of the shooting.
Uncontroverted video evidence shows that Mr. Tabares was
not charging Officer Esparza, nor was he attempting to hit
(nor had the capacity to hit) Officer Esparza after the initial
scuffle. Rather, Mr. Tabares was standing still 15 feet
away—much farther than the distance of eight to fourteen
inches in Billington. Mr. Tabares moved only after six shots
were fired, taking one step off the curb to steady himself
before a seventh shot was fired and he crumpled to the
ground. 10

10
Defendants’ counsel asserts that Mr. Tabares was moving towards
Officer Esparza before the shooting. But the video evidence taken from
 TABARES V. CITY OF HUNTINGTON BEACH 21

Even as a matter of federal law, much less of California
law, Billington does not mean “after multiple ignored
warnings and nearly a minute of sustained combat, Esparza
[was] objectively entitled to” infer “that no amount of
warnings or non-lethal means will succeed in safely
subduing” Mr. Tabares standing still 15 feet away. See
Deorle, 272 F.3d at 1282 (holding a non-deadly beanbag
round was an unreasonable excessive use of force where
“[t]here was no immediate need to subdue” a threatening
suspect); Glenn, 673 F.3d at 867–68, 874 (holding
similarly); contra Tabares, 2019 WL 4455999 at *9.

Finally, a reasonable jury could find Officer Esparza’s
firing seven shots to be unreasonable, even had an initial
threat existed. See Zion v. Cnty. of Orange, 874 F.3d 1072,
1076 (9th Cir. 2017) (holding “a reasonable officer would
reassess the situation rather than continue shooting” if the
suspect ceased to be a threat). After six shots, the only
command Officer Esparza gave Mr. Tabares was, “get
down,” and Officer Esparza did not give Mr. Tabares any
time to understand or comply with the command before
firing the seventh shot. Neither Roten nor Clark believed a
threat existed at the time of the shooting. Thus, a jury could
find that the number of shots, particularly the seventh, was
unreasonable.

IV

We appreciate and respect the great challenges that law
enforcement and first responders face daily in selflessly

multiple angles shows that Mr. Tabares was not; rather, Mr. Tabares took
a step away from Officer Esparza, if he moved at all. Defendants’
version of events is “blatantly contradicted by the record.” See Scott,
550 U.S. at 380.
22 TABARES V. CITY OF HUNTINGTON BEACH

carrying out their duties. We do not judge Officer Esparza’s
behavior “with the 20/20 vision of hindsight.” Graham,
490 U.S. at 396. Indeed, we acknowledge the severe stress
that can result from situations where an officer may feel his
safety is at risk. Ultimately, we do not “hold that a
reasonable jury must find in favor of the plaintiff[] on this
record, only that it could.” Gonzalez v. City of Anaheim,
747 F.3d 789, 797 (9th Cir. 2014) (en banc) (emphases
added). We merely reiterate that under California’s broad
formulation of negligence, Ms. Tabares’s negligence claim
survives summary judgment. 11

REVERSED AND REMANDED.

11
The district court is “free on remand to decline to exercise
supplemental jurisdiction over the state-law claim[] and allow plaintiff[]
to bring [it] in state court.” Depot, Inc. v. Caring for Montanans, Inc.,
915 F.3d 643, 668–69 (9th Cir. 2019); see also 28 U.S.C. § 1367(c)(3).