In 2017, a police officer with the City of Huntington Beach (“Officer Esparza”) saw a man standing on a sidewalk who caught his attention (“Mr. Tabares”).  Officer Esparza noticed Mr. Tabares wore a sweater on a warm day, walked abnormally, made flinching movements with his hands, and looked in his direction several times.  A former police officer who also saw Mr. Tabares thought he had mental health issues but was not dangerous.  Officer Esparza asked Mr. Tabares to stop walking so they could talk, but Mr. Tabares responded “no,” told Officer Esparza to leave him alone, and walked away.

Officer Esparza instructed Mr. Tabares to stop walking away multiple times.  Mr. Tabares turned and walked towards Officer Esparza in a confrontational manner with clenched fists.  Officer Esparza backed up, instructed Mr. Tabares to stop, and then used a taser.  Mr. Tabares approached Officer Esparza and punched him in the face.

Officer Esparza and Mr. Tabares fought and ended up on the ground, with Officer Esparza on top.  Officer Esparza struck Mr. Tabares several times and Mr. Tabares grabbed at Officer Esparza’s belt.  Officer Esparza said “let go of the gun,” but Mr. Tabares had instead taken Officer Esparza’s flashlight.  Officer Esparza stood up, drew his gun, and stepped back about 15 feet.  Officer Esparza then shot Mr. Tabares six times, shouted “get down” twice, and then shot Mr. Tabares a seventh time.  Mr. Tabares died.

Mr. Tabares’ mother filed a civil lawsuit in federal court and the district court granted summary judgment on all claims in favor of Officer Esparza and the City of Huntington Beach.  Ms. Tabares appealed the district court’s ruling on only one claim – her negligence claim under California law.

On February 17, 2021, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded, holding that Ms. Tabares’ negligence claim survived summary judgment.  See Tabares v. City of Huntington Beach (9th Cir., Feb. 17, 2021, No. 19-56035) 2021 WL 609854 (“Tabares”).

The court in Tabares explained that California negligence law is broader than federal Fourth Amendment law in excessive force cases.  It explained that 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 shooting might be reasonable in isolation.  Under federal law, courts generally focus on the tactical conduct at the time of the shooting.  The difference was particularly relevant in Tabares, where the court stated a juror could find Officer Esparza unreasonably failed to follow police protocol dealing with potentially mentally ill persons before using force.  It noted there was ample evidence that Officer Esparza potentially failed to de-escalate the situation as taught by California’s Peace Officer Standards and Training (“P.O.S.T.”) when dealing with a potentially mentally ill individual.

In addition to civil liability, the holding in Tabares provides additional support for imposing discipline where inappropriate tactical actions lead to the use of deadly force.  The Ninth Circuit Court of Appeals noted the district court did not consider that a jury could have found Officer Esparza’s pre-shooting conduct unreasonable given Mr. Tabares’ potential mental illness.  In California, police departments must look at the totality of the circumstances (including all actions leading up to the use of force) when deciding whether to impose discipline and, if so, the level.