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 evidence that the California Supreme Court would not follow intermediate state appellate court decisions on this issue, Appellees requested in their petition for rehearing that we certify 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 following question:
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 reformulate 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 claims stemming from the incident.
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 girlfriend 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 arguing about his attempt that night to commit suicide by inhaling exhaust fumes from his car. She told Deputy King that there had not been a physical altercation between them. 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 indication 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.
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 custody 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 represented a threat to his safety, Deputy King immediately drew his gun and fired two shots at Hayes, striking him while he stood roughly six to eight feet away from him. Deputy Geer simultaneously pulled her gun as well, firing two additional rounds at Hayes.
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 suicide 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 present this evidence to a jury in support of her claim that the deputies' conduct breached the standard of care and contributed to his wrongful death.
The district court entered summary judgment in favor of the deputies on this claim. Relying on decisions from the California Courts of Appeal, Adams v. City of Fremont, 68 Cal.App.4th 243, 276, 80 Cal.Rptr.2d 196 (1998) and Munoz v. City of Union City, 120 Cal.App.4th 1077, 1097, 16 Cal.Rptr.3d 521 (2004), the district court found the deputies owed Hayes no duty of care in their preshooting 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 person known to be suicidal. In deciding an issue of state law, when "there is relevant precedent from the state's intermediate 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 precedent here because it is disputed whether the California 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, 156 Cal.Rptr. 727, 596 P.2d 1143 (1979) (citing Grudt v. City of Los Angeles, 2 Cal.3d 575, 587, 86 Cal.Rptr. 465, 468 P.2d 825 (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 liability for negligence." Brown v. Ransweiler, 171 Cal.App.4th 516, 534, 89 Cal.Rptr.3d 801 (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 officers negligently failed to gather sufficient information before confronting him and escalating the situation. 68 Cal.App.4th at 259-60, 80 Cal.Rptr.2d 196. Relying upon factors outlined by the California Supreme Court in Rowland v. Christian, 69 Cal.2d 108, 112-13, 70 Cal.Rptr. 97,
Id. at 276, 80 Cal.Rptr.2d 196.
Similarly, in Munoz, a jury found an officer had negligently handled a crisis situation involving an intoxicated, hallucinating 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, 16 Cal.Rptr.3d 521. 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 evaluating negligence.
Id. at 1077, 16 Cal.Rptr.3d 521.
The California Supreme Court has not addressed these cases and has not directly ruled on the issue of whether officers owe suicidal persons a duty of care in emergency situations beyond the amount of force used.
After the district court granted summary judgment, however, 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, 94 Cal.Rptr.3d 1, 207 P.3d 506 (2009). In Hernandez, the court granted review to consider the following question: "When a federal court enters judgment in favor of the defendants 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 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, 94 Cal.Rptr.3d 1, 207 P.3d 506. 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, 94 Cal.Rptr.3d 1, 207 P.3d 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 preshooting conduct did not breach applicable standards of care. Id. at 515-22, 94 Cal.Rptr.3d 1, 207 P.3d 506. In light of this conclusion, the court in Hernandez declined to address the officers' claim that "they owed no duty of care regarding their preshooting conduct." Id. at 521 n. 18, 94 Cal.Rptr.3d 1, 207 P.3d 506.
The court's extended analysis of whether the officers' preshooting conduct breached the relevant standard of care indicated, however, that it would likely not adopt the broad rule from Adams and Munoz that officers owe no such duty. Id. at 518-21, 94 Cal.Rptr.3d 1, 207 P.3d 506. Indeed, in a concurring opinion, Justice Moreno argued that the court should not have reached the issue "because plaintiffs are entitled to amend their complaint to allege preshooting negligence." Id. at 522, 94 Cal.Rptr.3d 1, 207 P.3d 506 (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 determine whether any of the preshooting acts plaintiffs have identified can support negligence liability." Id. at 521 n. 18, 94 Cal.Rptr.3d 1, 207 P.3d 506.
There is disagreement within this court as to whether this discussion in Hernandez suggests that the California Supreme 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
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 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.