CA9: California negligent excessive force law broader than 4A; ptf stated claim

California negligence law permits negligent excessive force actions where the Fourth Amendment might not. Plaintiff adequately stated and supported a claim for a police shooting death of a mentally ill man. Tabares v. City of Huntington Beach, 2021 U.S. App. LEXIS 4470 (9th Cir. Feb. 17, 2021). Syllabus by the court:

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